Can Court Order be Set Aside Due to Wife’s ADHD?
In a case called Hatuka v. Segal, the couple separated in 2016 and started the process of untangling their financial affairs. The wife continued to live in the $1.7 million matrimonial home with their two school-aged children.
By early 2017, the husband was having financial challenges: He could not afford to service the home’s $610,000 mortgage and also carry the costs of a separate residence. He asked the court to compel a sale of the former matrimonial home. After two court hearing dates in which the wife appeared without counsel and requested an adjournment, the court finally granted the husband’s request and ordered the home sold immediately.
The wife then brought a motion to have the order set aside. She relied on Rule 25(19) of the Family Law Rules, which allows a court order to be changed in certain circumstances, namely those involving fraud, mistake, or lack of notice. (And – as was clarified in a recent Blog, a court has recently concluded that – despite its wording – the Rule allows for orders not merely to be “changed”, but to be set aside entirely as well).
The wife – who happened to be a foreign-trained but non-practicing lawyer – claimed that to sell the home now would bring her hardship and distress since there were no child or spousal support orders yet in place. Although both spouses filed extensive materials in support of their respective positions, the court noted that the wife’s included a 93-page personal affidavit with 32 exhibits.
In examining the merits of the wife’s argument on the motion, the court began by stating:
The basis upon which [the wife] seeks to apply Rule 25(19) to set aside the Order of March 22, 2017, is unclear. …
[The wife] does not raise any issue of mistake.
[The wife] does not raise any issue of lack of notice or non-attendance. …
[The wife’s] affidavit of August 18, 2017, claims that she has suffered litigation disadvantage as a result of the following assertions. These were the initial focus of her counsel’s submissions on this motion to set aside:
(a) she has ADHD and learning disabilities;
(b) she is a recent immigrant with limited English skills;
(c) she has been largely self-represented, with gaps in representation; and
(d) she strongly believes that [the husband] has taken advantage of her, while abusing the court process.
The court concluded simply: “These are not grounds for a Rule 25(19) analysis.” The court also rejected the wife’s contention that the husband had failed to disclose his full income, and there had accordingly been fraud, adding:
Setting aside an order under Rule 25(19) (a) carries a high threshold. Fraud within Rule 25(19)(a) does not have a special meaning outside the common law. A moving party must clearly prove that the other party knowingly or recklessly made a false statement with knowledge of the falsehood, and did so with wrongful intent.
The court dismissed the wife’s motion.
For the full text of the decision, see:
