When parties separate, they at times lose track of each other. One party may start a court case and in certain circumstances, the other will know nothing about it. At other times, one can make a simple mistake and not attend court when they are required to. There are methods of setting aside a Court Order arising from a motion or action that you did not participate in. The Court does provide the tools in relatively unusual circumstances. One should not rely on these rules as an excuse to ignore a court action, knowing that at a later date you can re-open them. That is playing with fire.
However in certain circumstances, the Court in Family Law matters can look to both Family Law Rule 25.19 (e) as well as the Rules of Civil Procedure Rule 19.08. The Ontario Court of Appeal in the 2017 decision of Grey v. Greyinterpreted the Family Law Rules relating to set aside an Order obtained against someone who failed to show up at Trial or Motion. The two Court summarized earlier decisionsand set out five factors.
- Did the defaulting party move as quickly as possible once they learned of the decision against them?
- Is there is a good explanation why the defaulting party never showed up?
- Can the defaulting party set out facts that show they have a reasonable shot at a Defence to the decision the Court has rendered against the defaulting party?
- What is the prejudice to both the person asking to set aside the Order and the person resisting it?
- If the Court does re-open the case, how does that reflect on the integrityof the Judicial System?
The Court of Appeal has even gone further to state that these factors are not exclusive and written in stone. The Ontario Court of Appeal has held that having a good arguable Defence to the Default Judgment trumps all other factors and the Court may exercise its discretionto set aside the Default Judgment, even if the other factors are unsatisfied in whole or in part. See the 2014Ontario Court of Appeal decision in Mountainview Farms v. McQueen decision.
Clearly this is a complicated process fraught with incredible consequences to all. Even if one is successful in setting aside a Default Judgment at the minimum, they would be hit with a substantial cost Order against them.