Court Cases & Orders

Dad Has Obligation to Check Junk Mail Folder, Court Says

Written by Russell Alexander / (905) 655-6335

Dad Has Obligation to Check Junk Mail Folder, Court Says

In a recent divorce case the father appeared before the court, asking to have a previously-issued final order set aside.  The mother had obtained that order at trial after properly following the court rules, which included e-mailing the father notice of the proceedings.  The father had never responded.

The trial had gone forward undefended, and in the father’s absence the mother got a final order granting her sole decision-making responsibility over their children, and other property-related relief.

The father now objected, claimed that he had never seen those court materials at all, since they went into his Spam or Junk e-mail folder unnoticed.  He also claimed he was “dealing with mental health issues due to stress from events post-separation and lack of contact with the children, for which [he] sought treatment”.

In considering the father’s request to set the default final order aside, the court noted it was obligated to consider the facts and circumstances of each case.

First, the court noted that the father – who initially had a lawyer but was currently unrepresented – had a longstanding pattern throughout the proceedings of ignoring communications from the mother and her lawyer.  He had not made financial disclosure, did not file his responding materials despite repeated reminders, and refused to pay child support voluntarily.  All of this was causing financial hardship for the children.

However, his assertion that he was suffering from mental health issues (allegedly verified by a therapist), were unfounded.  He claimed to have actively chosen not to engage in the litigation to relieve the stress caused by “emotional torture by his spouse”, but the documents and timelines showed differently:  He had actually been participating in negotiations throughout. Plus, the father provided only undated opinions from the purported therapist, without any resume or CV showing the therapist was qualified to make this assessment.

The father also claimed he was stressed because his children would not speak to him – but the court found he was the author of his own circumstances.  He never once called the children over a 3-week period when he was given the chance, and then actively interfered with attempts at meaningful access. The court explained:

The mother sent a message to the father that the children wanted to see him and offered to drop them off and pick them up. The father never responded. The mother had the children waiting for the father’s virtual call on five occasions and he never connected.

In May, the video parenting time started, and the father unilaterally removed the [court-ordered] third-party supervisor.

The father’s actions brought this parenting time to an end.

Finally, the court addressed the father’s explanation that he did not receive “any notice of any court proceedings”, and that he “eventually found a copy of the court order and additional court documents delivered to [his] spam email folder” some time later.  The court concluded this was simply “not plausible”.  It noted the father’s conduct over the preceding months belied his knowledge of the claims by the mother, and he was well aware from friends and other family sources that there was a scheduled trial upcoming.

More to the point, the court rejected the father’s Spam folder explanation, stating:

While he says that it went into his junk/spam email, this is not an excuse. It is his obligation to regularly check his spam or junk folder and there is no evidence that he ever did so.

Even after the father was no longer represented by a lawyer, it was his obligation to familiarize himself with the Family Law Rules and to follow them, the court said.  His misapprehension that he would get personal service of any critical court documents was not in line with what the Rules called for, and was no excuse.

The court summed up its findings:

Based on this evidence, the father’s mental health explanation is not plausible or credible. Nor do I accept his excuse that Justice Lococo’s [prior court] endorsement went into his spam email. … At a minimum, he should have been checking his email including the spam email. He also should have connected with the mother’s counsel and should have taken steps to promptly cure his default.

For this and other substantive legal reasons, the court dismissed the father’s motion to set the final order aside.

For the full text of the decision, see:

Tariq v. Rehman, 2022 ONSC 3525

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.