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DEFAULT JUDGMENT: IS JUDGMENT ALWAYS FINAL?

In September, 1985 Anna Maria married George Cadas and became Anna Maria Cadas.  15 years and two children later, the parties separated.

Anna Maria and George both hired lawyers to try to untangle all the things that had held them together during their marriage, like children, like money, like all the things they bought together.... Like their lives.

Would it surprise you to learn that things did not go well?

For starters, George fell behind in his spousal support payments. He also failed to provide full financial disclosure to his wife's lawyer, even though he'd been ordered to do that by the court.

As a result of George's failure to obey court orders including giving financial disclosure and paying spousal support, all the documents that George had filed in his own defence in the court action were "struck". The judge ordered that a hearing be held in which only Anna Maria's documents and other evidence would be considered during the hearing. This is known as an uncontested trial since the opposing spouse does not take part in the trial.

The uncontested trial was set for a date in August of 2012. George's lawyer was served with copies of the documents that Anna Maria intended to rely on at the hearing, as well as notice of the date the hearing was to take place.

At that uncontested trial George and his lawyer were no shows. Not surprisingly, Anna Maria did very well. Among the numerous orders made by the court that day, the court ordered George to make an equalization payment to Anna Maria in the sum of $441,017.15. In addition to that whopping sum, George was also ordered to transfer his interest in the former matrimonial home.

One might argue, if you snooze...you lose!

In fact, after George got word of this Order, he hired what appears to have been his third lawyer, and brought an Application to have the Order set aside and to provide him with an opportunity to file his own version of the facts.

George had several arguments to persuade the court to consider his Application. George argued that:

1) His former lawyer did not keep him informed of his case nor copy him on correspondence and in fact, did not act in his best interest.

2) That George was not adequately represented by his lawyer and should not be faulted for that.

3) That he (George) was suffering from mental health issues. George argued that before separation he was worried about imaginary parasites attacking his body (delusional paracitosis) as well as ongoing bouts of anxiety and depression. These, he argued, interfered with his ability to properly deal with the legal issues during the proceeding.

4) Most importantly George argued that Anna Maria misled the court at the uncontested trial by filing financial material that was so wildly out of whack with reality that the judge could never have made a just and fair order.

For her part, Anna Maria argued that:

1) If her material at the uncontested trial was inaccurate, that was because George had not followed the judge's Order of disclosing his financial information and she had therefore relied on what information she had. Anna Maria pointed out in fact, there were still outstanding court orders for disclosure that George had not fulfilled.

2) George had repeatedly breached court orders and therefore he should not be entitled to bring this motion and seek relief as he had not cured the breaches including paying up arrears of support.

3) Allowing George to proceed after the uncontested trial, keeping in mind that he knew the trial was going ahead, would prejudice Anna Maria as she had spent a significant amount of money on legal fees. Opening up the case again at this late stage (after the horse had got out of the barn), would cause Anna Maria to incur more legal fees all as a result of George's inactions.

There was one important point on which the presiding judge did agree with George. The judge found that Anna Maria had knowledge of certain financial information which was not disclosed at the uncontested trial. The judge said that the failure of Anna Maria to include that information at the uncontested trial might lead to an unjust result for George.

So, should the court allow a new hearing? Remember, George's lawyer was served with all of the material that Anna Maria had. George had the opportunity to point out the misinformation even before the hearing was held, but chose not to. George, the no-show, chose not to challenge Anna Maria's uncontested trial.

Was this a case of "too bad, so sad"? Or did George deserve another kick at the can?

In the end the judge reminded George and Maria that it is the obligation of the Court to ensure that the court proceedings are fair and just. Because of the misinformation used at the uncontested trial, the decision did not reflect fairness. For that reason the judge set aside the Order as it related to the equalization payment and gave George an opportunity to properly defend that aspect of the case.

Lessons to be learned:

1) Hiring the right lawyer is key.

2) Finding the right lawyer can be a challenge. Websites are very helpful, but reputation and referrals by people you respect are the most powerful indicators.

3) Insist that your lawyer keep you fully informed on your legal matter no matter how complex or how simple, including such every day legal business as buying a house or preparing a Will.

4) Retain a lawyer who has special knowledge in the area of law that you are involved with and who focuses on cases of that nature.

At The Ross Firm, we have lawyers whose practice focus is Family Law.

Give us a call.

Talk to us.

We can help.

 

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