• by Christina Hinds
Originally published in the OFLM 2024-05 edition
Overview
An uncontested trial is defined within the Family Law Rules as a trial at which only the party making the claim provides evidence and submissions.
L. v. L. (2024 ONSC 1444) is a recent decision of Justice Jarvis following an uncontested trial where he declined to grant the relief sought by the mother. L. v L. serves as a reminder that an uncontested trial, sometimes referred to as a chambers trial, still requires proper preparation and “trial worthy evidence”.
In L. v. L., the mother sought an order to set aside the parties’ 2015 separation agreement. She also requested sole decision-making of the parties’ child, child and spousal support, and equalization of the parties’ net family properties.
The father’s pleadings had been struck in January 2023 by Justice Bruhn, with respect to both parenting and financial issues and the uncontested trial was heard in February 2024. Justice Jarvis refused to grant the relief requested by the mother with respect to the financial issues on the basis that the mother did not provide sufficient evidence or legal basis for her claims.
Evidentiary requirements of an uncontested trial
The evidentiary requirements of an uncontested trial are no different from a trial held in open court. Justice Jarvis explained that in either situation, “trial-worthy evidence is required, in other words, admissible, probative evidence” (L. v. L., at para. 4).
In Cedeno v. Cedeno, 2023 ONSC 6686, Justice Kristjanson noted that at an uncontested trial, it is not the judge’s responsibility to cure deficiencies in the record. While judges have discretion to require a party to produce additional evidence or provide oral evidence, parties should not rely on this discretion, and must prepare a full evidentiary record. Citing Obhan v. Chana (2021 ONSC 2877), Justice Kristjanson stated at paragraphs 3, 4 and 7:
Since this is a trial, I must apply the rules of evidence to documents and affidavit evidence relied on. As Somji, J. held in Obhan v. Chana, 2021 ONSC 2877 at para. 5:
It is important to note that the mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the Applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
The Applicant did not file a factum. This is a trial. As a trial judge I must make findings of fact based on evidence. I must apply statutory provisions. I must consider the case law. An uncontested trial by Form 23C takes place in chambers. I was provided no assistance regarding how or why I should decide the case based on the affidavit evidence filed. I have had to make my own determinations of law in the absence of any submissions by the Applicant...
An uncontested trial is not a rubber-stamp. While judges have discretion to require a party to produce additional evidence, or to provide oral evidence, it is not the judge’s responsibility to cure deficiencies in an applicant’s record. Busy Family lists mean it is difficult for a judge to engage in multiple rounds of fact-finding through back and forth with counsel or a party. An uncontested trial is a trial, set for a full hearing, and determination, on the date it is assigned to the judge. (emphasis added)
While Justice Jarvis acknowledged that preparing an evidentiary record for an uncontested trial can be challenging – an uncontested trial should never be an invitation to engage in speculation or to invite the court to make an arbitrary order” (at para. 6).
The Separation Agreement
In L. v. L., the mother asked to court to set aside the parties’ 2015 separation agreement because of a lack of financial disclosure from the father and her lack of independent legal advice. However, the mother did not provide any evidence of the circumstances which led to the separation agreement.
Justice Jarvis noted that while many of the terms of the agreement were likely unenforceable, improvident, or possibly unconscionable, the court should not be obliged to speculate as to whether the agreement, or parts of the agreement, should be set aside (at para. 8).
Equalization
The mother sought an equalization payment to her in the amount of $173,500. However:
- The mother did not submit a Net Family Property Statement along with her material. Rule 13(14) of the Family Law Rules requires a Net Family Property Statement to be filed where an equalization payment is claimed. As stated by Justice Jarvis, Rule 13(14) is not permissive (at para. 14).
- The mother did not file an updated financial statement or affidavit confirming no material change as required by Rules 13(12) and 13(12.1).
- The mother did not file a Certificate of Financial Disclosure as is mandated by the Family Law Rules (at para. 13). Where support and property claims are made, parties are required to serve a Certificate of Financial Disclosure pursuant to Rule 13(5.0.2).
Support
While there was some evidence of the father’s income from the time in which he was involved in the proceeding, the mother did not submit any updated evidence with respect to the father’s income. In 2018, the father earned around $210,000; in 2019, the father earned $147,900; and in 2020, the father earned $39,100. The mother asked the court to impute income to the father in the amount of $200,000 retroactive to 2015. In response, Justice Jarvis asked the rhetorical question: “Why? On what evidence?” (at para. 16).
While the mother had evidence of the father’s income between 2018 and 2019 and several bank account statements, Justice Jarvis did not consider such evidence sufficient to make an order for retroactive or ongoing support. The mother’s material did not include any steps that she took to obtain evidence as to the father’s income, including:
- a third-party disclosure motion to the father’s employer or banking institutions;
- a corporate search on the paternal father’s company/companies;
- evidence from the company’s public filings;
- evidence from the company’s social media posts or the father’s social media posts;
- an inquiry pursuant to the Personal Property Security Act; and
- Any steps to hold the father in contempt for his non-disclosure?
Justice Javis noted that such evidence would have assisted the court in its fact-finding inquiry and that the evidence provided by the mother was insufficient to warrant the relief claimed (at para. 19).
In response to the mother’s request for lump sum spousal support in the amount of $105,000, Justice Jarvis asked again: “why and on what basis?” (at para. 21).
Further, the mother asked for contribution toward the child’s section 7 expenses but did not detail those expenses and proof of the expenses. She also did not provide evidence as to her own income.
Conclusion / To do list
When preparing uncontested trial materials, parties and lawyers would do well to keep in mind the following:
- Compliance with the Rules is not relaxed when the matter proceeds by way of an uncontested trial – lawyers and parties must ensure financial statements are updated, and net family property statements and certificates of financial disclosure are filed, where applicable.
- File a factum! Provide the court with the applicable statutory provisions and case law.
- Do not expect the court to fill in any evidentiary gaps.
- Do not rely on the court’s discretion to ask for additional evidence. Prepare your client’s materials as though the trial is proceeding in open court.
- Do not rely on the lack of financial disclosure provided by the other party. If your client is unable to obtain the evidence, ensure that your client has taken further steps to try to obtain the relevant evidence.
If such preparation is not undertaken, parties may find themselves in a similar situation as the mother in L. v. L.