David Morningstar Applicant — v. —, 2011 ONSC 5921

CITATION : Morningstar v. Holley, 2011 ONSC 5921 COURT FILE No.: 4074/06 DATE: 2011·10·06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: David Morningstar Applicant — AND — Marianne Holley Respondent Before Justice J. R. Henderson Heard on October 5, 2011 Reasons for Decision on Motion released on October 6, 2011 David Morningstar ……………………………………………………………….…….on his own behalf Ms. J.

McMillan ……………………………………………………………………….for the Respondent HENDERSON, J.: [ 1 ] The Applicant brings this motion to set aside the final order of Justice Tucker, dated May 20, 2010, made in the absence of the Applicant, on the ground that the Applicant did not receive any notice of the hearing and was therefore unable to present his case to the court. [ 2 ] On any motion to set aside a default order, it is the duty of the court to determine whether it is in the best interests of justice to set aside the order in light of three important factors.

In this case, those three factors can be described in the form of the following questions:

(1) Is there a reasonable explanation for the Applicant’s failure to attend court?

(2) Did the Applicant move promptly to set aside the default order after it came to his attention?

(3) Does the Applicant have a triable defence to the Respondent’s claims? [ 3 ] Regarding the first factor, I have great difficulty accepting the Applicant’s explanation for his failure to attend court. [ 4 ] This proceeding was commenced by the Applicant in 2006. The Applicant was represented by a lawyer, Luigi De Lisio, until his lawyer brought a successful motion to be removed as solicitor of record in December 2008. [ 5 ] After Mr. De Lisio was removed as solicitor of record, Mr.

De Lisio wrote a letter to the Applicant informing him that the case was to be spoken to in Assignment Court on January 6 th , 2009. The Applicant did not attend the Assignment Court on January 6 th , 2009, and at that time the trial of the case was scheduled for the week of July 20 th , 2009. [ 6 ] After the January Assignment Court, the Respondent’s lawyer, Johan McMillan, wrote a letter to the Applicant informing him of the trial date.

That letter was hand-delivered to the Applicant’s home address. [ 7 ] The Applicant did not attend at court in the week of July 20 th , 2009, but the case was not reached in that week. Therefore, the case was adjourned to the Assignment Court of December 8 th , 2009. The trial co-ordinator of the Superior Court of Justice wrote a letter to the Applicant dated November 6 th , 2009, informing him of the new Assignment Court date. [ 8 ] The Applicant did not attend the Assignment Court on December 8 th , 2009, and the trial was re-scheduled for the week of May 17 th , 2010.

The Applicant did not attend at court when the case was called for trial during the week of May 17 th , 2010, and thus Justice Tucker heard the matter and made the aforementioned order.

[ 9 ] The Applicant simply states that he received no information as to the court proceedings after his lawyer was removed from the record in December 2008. He submitted that he did not receive any of the aforementioned letters.

He has deposed that he was not aware of the May 2010 court order until approximately May 2011 when he received a notice from the Family Responsibility Office (“FRO”) that informed him that the FRO would be commencing to garnishee his wages. [ 10 ] I note that the Applicant has consistently resided at 4762 Second Avenue, Niagara Falls, Ontario from at least the year 2007 to the present time. Mr. De Lisio’s letter was addressed to the Applicant at that address; Ms. McMillan’s letter was hand-delivered to that address; and the trial co-ordinator’s letter was mailed to that address.

It is unbelievable that the Applicant would not have received any of this correspondence. Given these circumstances, I find that the Applicant received the aforementioned letters and accordingly that the Applicant was aware of the status of the court proceedings. [ 11 ] Furthermore, in the alternative, if the Applicant was truly unaware of the status of the proceedings, I find that he could have, with minimal effort, made himself aware of the status of the proceedings. This court expects self-represented litigants to make some modest efforts to keep themselves apprised of the status of the proceedings.

The Applicant has represented himself in the matter since December 2008; however, apparently the Applicant did nothing to ascertain the status of the proceedings for approximately two and a half years. [ 12 ] Thus, in the alternative, I find that the Applicant either chose to ignore the aforementioned letters or failed to make reasonable enquiries of the court, such that the Applicant was wilfully blind to the status of the proceedings.

Wilful blindness is not an acceptable explanation for the Applicant’s failure to attend court. [ 13 ] For these reasons, I find that the Applicant has not provided a reasonable explanation for his failure to attend court. [ 14 ] Regarding the third factor, I find that the Applicant has not produced any information or documentation that would convince a court that there is a triable defence to the claims made by the Respondent that were accepted by Justice Tucker. [ 15 ] Justice Tucker ordered that the Applicant pay child support for his daughter, Kelsey, retroactive to the year 2004.

There is no doubt that Kelsey is the natural child of the Applicant and the Respondent and that Kelsey remained in the custody of the Respondent after the separation in 2004. Thus, there is no doubt that the Applicant is responsible for the payment of child support to the Respondent. [ 16 ] The evidence establishes that the Applicant has paid no child support whatsoever for Kelsey from the date of separation until his wages were garnisheed by the FRO in the spring of 2011.

This failure to pay child support flies in the face of the temporary order made by this court in December 2007 that required the Applicant to pay $318 per month in child support to the Respondent.

That order was made on a contested motion in which the Applicant was represented by counsel. [ 17 ] Today, the Applicant offers no explanation for his failure to pay child support since 2004, and he offers no information that would suggest that the order for child support made by Justice Tucker was inappropriate. [ 18 ] Furthermore, Justice Tucker found that the Respondent was entitled to a declaration that she had a constructive trust interest in a property that was owned by the Applicant in the amount of $45,000.

There was ample evidence before Justice Tucker in support of this finding and the Applicant has offered no contrary evidence on that point. [ 19 ] The other orders that were made by Justice Tucker are relatively routine orders that are made in matrimonial matters, and there is no evidence offered by the Applicant that would lead a court to set these orders aside. [ 20 ] With respect to the second factor, I accept that the Applicant moved promptly to set the order aside after the FRO commenced to garnishee his wages. [ 21 ] All three of these factors must be considered together.

Given my findings with respect to the first and third factors, the interests of justice do not support an order setting aside the default order in this case. Therefore, the Applicant’s motion to set aside the final order of Justice Tucker, dated May 20, 2010, is dismissed. [ 22 ] The Respondent is entitled to costs of this motion. Counsel for the Respondent may make written submissions as to the quantum of the costs within 14 days, and the Applicant shall have 7 days thereafter to reply, in writing, to those submissions. Released: October 6, 2011 Signed: “Justice J. R. Henderson”