When you have been served with papers in a family law claim, it is essential that you and/or your lawyer attend Court on all scheduled dates.  The recent decision of AJD v. CD, 2018 BCSC 73 [“AJD”], demonstrates that missing a court date can result in an Order being made against the party who fails to attend a hearing, and also shows that having the Order set aside can be very difficult.

In AJD, a Respondent missed his court date and the judge, amongst other things, ordered the Respondent to pay $522,408.24 in child support arrears and ordered that the arrears were payable forthwith.  The Respondent appealed, but also filed a Notice of Application seeking, amongst other things, to have the Order set aside.  The Honourable Madam Justice Young wrote that to set aside an order when a party missed a hearing date, an applicant must show:

  1. the failure to appear was not wilful or deliberate;
  2. the application to set aside the judgment was made as soon as reasonably possible;
  3. the defence is worthy of investigation; and
  4. all requirements are established through affidavit material filed on behalf of the applicant.

With respect to factor 1 of the above test, Madam Justice Young wrote

[17]        I do not accept the respondent’s assertion that his failure to attend the court hearing was not wilful or deliberate.  I find instead that he was well aware of this ongoing court application which had gone on for over a year and he deliberately refused to open envelopes and inform himself of the status of the litigation.  I find it highly unlikely that [the respondent’s lawyer], who suggested the hearing date of July 24, 2017, would not communicate this with the respondent.

With respect to factor 2, Madam Justice Young wrote:

[21]        This application was brought on December 1, 2017.  I find this was made within a reasonable time albeit not as soon as reasonably possible.  The application was brought after the Order was entered which further restricts the jurisdiction this Court has in making any reconsideration.

With respect to factor 3, Madam Justice Young wrote:

[34]        I conclude that there are defences worthy of investigation, but because the respondent has not satisfied the Court that his failure to appear at the Hearing was not deliberate, this Court is not in a position to set aside the Order nor can this Court reconsider any portion of Order now that the Order is entered.  This Court is functus officio.

In addition to seeking to have the Order set aside, the Respondent also sought a stay of execution on the Order until his case could be heard by the Court of Appeal.  With respect to granting the stay of execution on the Order, Madam Justice Young wrote:

[40]        New evidence has been provided about the respondent’s current financial circumstances.  He is now separated from his second wife who holds an interest in all of his assets.  His home and bank account are in joint names with his spouse.  His RRSPs are in his sole name.  The claimant intends to enforce the Order.  If she does, he may suffer hardship pending the appeal.  Enforcement of the Order would liquidate most of his assets.  If he had to liquidate the RRSPs, he would incur significant income tax liability.  Once the funds were released to the claimant they would be difficult to reattach.

[41]        The respondent may suffer harm if the claimant successfully attaches his assets pending appeal.  I am not satisfied that this would be irreparable given that the claimant will likely not be able to liquidate the jointly held assets and I am uncertain whether the RRSP is attachable.

[42]        The claimant and the children have suffered actual harm for years by receiving far less child support than they were entitled to do.  The children still have needs as they embark on university education with no funds.  The claimant has incurred debt to meet their past needs and is not in a position to financially assist them with their educational costs.

[43]        On a balance, I find the actual harm to the claimant and the children is greater harm than the possible harm to the respondent.

[44]        The respondent has suggested a reasonable proposal in the alternative.  He acknowledges that some arrears exist and he offers to pay $5,000 a month toward the arrears pending the outcome of the appeal if a stay of execution is granted.  That payment would be in addition to the ongoing child support which he is paying.  This alternative would alleviate some of the immediate needs of the children.

[45]        I will grant a conditional stay of execution.  As long as the respondent continues to pay $5,000 per month commencing February 1, 2018 and continuing on the first day of each and every month until further order of this Court or the British Columbia Court of Appeal, then the execution of the Order shall be stayed.  If the respondent is in breach of the condition, the claimant may apply to this Court after the respondent has been in breach for 30 days to lift this stay of execution.

Therefore, while the Respondent succeeded in obtaining a conditional stay of execution in respect to the Order, if he failed to make payments as ordered by the Court, the Respondent risked having the terms of the original Order enforced against him.

 

If you wish to discuss a family law issue, please contact any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward at Heath Law LLP (250-753-2202) to make an appointment.

They can also be contacted by email at ksugiyama@nullnanaimolaw.com, cmurphy@nullnanaimolaw.com or nseaward@nullnanaimolaw.com