He disputed whether his former counsel was authorized to accept service of court documents
The Ontario Superior Court of Justice, Family Court, set aside a default judgment in a parenting and child support case, allowing the father to respond after finding that miscommunication with his former legal representatives provided a plausible excuse for his failure to participate in the proceedings.
The case involves parents who were in a relationship from September 2022 to November 2023 and share a child, LML, born in July 2023. The child primarily resides with the mother, who initiated court proceedings.
The court scheduled a first appearance for May 2024, but the father did not file responding materials. As a result, an uncontested trial proceeded in his absence, leading to a final order addressing decision-making responsibility, parenting time, and child support.
The father asked the court to set aside the judgment, arguing that he had not been properly served with the application and was unaware of the proceedings. He requested permission to file an answer, an affidavit, a financial statement, and a case conference.
The father claimed he was never properly served and did not know about the trial. He argued that he retained Dolgonos LLP only for parenting time negotiations and never authorized them to accept service on his behalf.
The mother argued that the service was valid and that the father had knowledge of the proceedings through his legal counsel but chose not to respond. She opposed setting aside the judgment, stating that the order should remain in effect.
The Superior Court determined that the applicant's counsel acted appropriately in serving documents through Dolgonos LLP, which had confirmed in writing that it represented the father and was authorized to accept service. While the father disputed this, the court found that any issue regarding his former counsel's authority was a matter between them and did not invalidate service.
The father received the court order on September 9, 2024, and attended court two days later to review the case file. He retained new counsel in November and filed a motion to set aside the judgment in December. The court found that he acted "with reasonable promptness" under the legal framework established in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194.
The court found that conflicting statements from Dolgonos LLP supported the father's claim of miscommunication with his former counsel and accepted his explanation as a plausible reason for his failure to participate in the trial.
The father disputed key elements of the order, including parenting time, sole decision-making responsibility granted to the mother, and the income imputed to him for child support calculations. The court found that these issues warranted further examination.
The father argued that the default judgment prejudiced him by restricting his parenting time, imposing supervised access, and assigning sole decision-making to the mother. The imputation of his income at $100,000 without input also affected child support calculations.
While the mother incurred costs pursuing the application uncontested, the court determined that her need to defend her position was an obligation she would have faced had the case proceeded normally. The court concluded that the father would suffer more significant prejudice if the judgment remained in effect. The court ultimately set aside the order, allowing the father to file his response.
