Father Bumbles Child Support Litigation – A Lesson in What Not to Do
A recent decision – though relatively uneventful from a legal standpoint – shows how it often doesn’t pay to try to manage your own family law litigation without the help of competent legal representation.
In O’Donnell v. Davis, the father and mother never lived together, but they had a child. After they separated, the mother brought an application for child support but – despite being served with notice – the father didn’t bother to attend the hearing. As such a default order was made, granting the child’s mother custody, with access to the father. The father was also ordered to pay child support based on his estimated or imputed income.
Faced with a court order to pay child support, the father suddenly took more interest in the litigation. First, he brought a series of unsuccessful motions trying to have the matter restored to the court’s list for hearing. Then he brought a motion asking to have the judge’s order set aside.
The judge granted that order, and allowed the father to file his answer and defence together with some additional material. Another hearing date was set, to determine whether the default order should be set aside.
At that hearing the circumstances of the father’s failure to attend the initial hearing came to light: At the outset, the father conceded that he had been personally served with certain documents relating to the mother’s court application, indicating that the hearing would occur at 1 p.m. on an August 2011 afternoon. However, he claimed that the first two pages were missing, but apparently he did not take the initiative or make any effort to get duplicates or ascertain what was on those missing sheets.
(It should be noted that Courthouse records showed that the father had been paged in the corridor three times at 1:25 p.m., and then again at 2:50. Needless to say, he did not respond. However, he did attend a Mandatory Information Program (MIP) on 3 p.m. that same afternoon. Unfortunately, the father did see fit to provide the court with a certificate confirming his attendance at the MIP, which might have helped his position).
In light of these circumstances, the father – who was unrepresented at the hearing – asked the court to consider whether it should set aside the final order.
In considering the father’s request, the court noted that according to the law, the relevant issues were whether:
• the father acted in a timely manner to bring his motion;
• his material disclosed a viable defence;
• a different outcome would likely have resulted, had the father’s material been before the court at the time the order was made;
• the father acted in good faith; and
• setting aside the order would be appropriate in the interests of justice.
Applying these factors to the case, the court made certain findings. First of all, the father had taken 5-6 weeks before taking steps to try to have the order overturned. This, the court found, did not amount to a significant delay.
Next, in terms of the substantive merits, the father did not actually dispute most of the facts and claims put forth by the mother. Moreover, although he was purporting to assert certain claims against the mother, the court found these “disclose[d] no factual basis whatsoever.” Also, the material the husband filed did not show any basis for concluding the legal outcome would have been different.
But most troubling to the court was the father’s truthfulness in filing materials and giving evidence. For one thing, he had made certain claims that the mother had a drinking problem and suffered from depression. The court concluded these allegations were wholly unsubstantiated.
Even more egregious was the father’s lack of candour in connection with his employment status and income. Specifically, in some documents he claimed that he had been unemployed since 2009. In his financial statements filed with the court, he provided no tax returns, and claimed that he had no income, no expenses, no assets, and no debts. Yet in another section of that same financial statement he claimed to be contributing $1,200 per month towards the support of his new wife and family (although he did not disclose the source of the income needed to do that).
Indeed, the wife gave evidence that he was actively working, was earning $24 per hour, and had occasionally needed to change child access plans because he “had to work late” or because he had been scheduled to work overtime.
(To compound matters, father also claimed he did not own a vehicle; yet the mother was able to produce copies of advertisements for cars for sale, which showed the father’s cell number as a contact.)
In short, the court found the father’s financial evidence to be contradictory at best. It said:
“I conclude that either the respondent was lying to the applicant or to the court. In either case, he has an undisclosed source of funds.”
With all this in mind, the court found that the father did not come to court “with clean hands” and more importantly had absolutely no defence to the mother’s valid claims for support. Respecting the hearing that he missed, the court also pointed out that the father had plenty of opportunity to ascertain court dates, and obtain assistance from duty counsel or court staff at the Family Law Information Centre, in any case.
The father’s motion to set aside the default judgment was accordingly dismissed. However, after reviewing the mother’s evidence as to her actual child care costs, the child support order was varied in order to more accurately reflect the mother’s reduced child care needs.
For the full text of the decision, see
O’Donnell v. Davis, 2012 ONCJ 36 http://canlii.ca/t/fps9n
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.
