In Williams v. Williams Master MacLeod deals with a motion brought in Family Law Motions Court pursuant to Rule 14 of the Family Law Rules in Ontario, to set aside the dismissal order made by the court clerk, under Rule 39(12).  Pursuant to Rule 39(12), a case for which a notice of approaching dismissal has been served shall be dismissed without further notice within 60 days after the notice provided that neither party takes steps to move the matter along or fails to seek an extension.

In this case, the applicant husband applied for divorce in 2006 and respondent wife sought corollary relief in her response to the application.  In 2007, the husband was ordered to pay temporary spousal support.  Neither of the parties sought to make the support order final or have it set aside after 2007 when their divorce was ordered.  In 2010, the husband suffered serious health issues which resulted in his income being significantly reduced.  This same year, the husband’s power of lawyer brought a motion to suspend or terminate the temporary order for support.  The action was dismissed by the clerk of court due to delay.  The wife then successfully brought motion to set aside dismissal order so that she would not have to commence a new application to seek support.

In reaching his decision, Mater MacLeod conducted an in-depth analysis of all of the recent case law relating to this issue and compared Rule 14 with the Rules f Civil Procedure.  Master MacLeod found that three decisions were especially important to the issue at hand, Scaini v. Prochnicki, 2007, Marché d’Alimentation Denis Thériault Ltée v. Giant Tiger Stores, 2007 and Finaly v. Van Paassen, 2010.

As a result of these three decisions, Master MacLeod found it was possible to summarize the approach to setting aside administrative dismissal order under rule 48.14 of the civil rules and also the Family law Rules as the test is the same.  Master MacLeod employed jurisprudential four-pronged test which required considering the following factors:

• explanation of litigation delay;
• inadvertence in missing deadline;
• promptly bringing motion to set aside dismissal order; and,
• absence of prejudice to defendant.

Essentially, prejudice was key consideration.

In this case, since the wife would lose the benefit of the temporary order and would have to bring new motion for interim relief if the application were dismissed, the court found that the prejudice to wife in dismissing proceeding outweighed prejudice to husband by reviving it.  To that end, the order for dismissal was set aside but the husband was permitted to bring immediate motion to terminate spousal support payable under temporary order based on drastic change in circumstances arising from his failing health.