Background

In 2018 the wife commenced divorce proceedings. The first case conference was almost a year later, yet the husband had still not filed an Answer by that time. The respondent then brought a motion for an order for an uncontested trial. The husband did not attend the case conference, was noted in default, and was ordered to deliver his Answer, disclosure, and financial statements within thirty days. If the disclosure was produced than the motion for an uncontested trial would be dismissed but if not the uncontested trial would proceed.

The case proceeded to a second case conference and the husband still had not filed an Answer or produced any materials. The uncontested trial was held in late November and the Court granted the wife exclusive possession over the matrimonial home, facilitated the sale of the matrimonial home, the division of the sale proceeds and granted temporary spousal support.

Three months later the husband became the appellant as he brought a 14B motion seeking to set aside all orders made to date and granted him leave to serve and file his disclosure. The motion was dismissed by Justice Nicholson on the grounds that the appellant had never appealed any of the prior orders made by Justice Fryer.

The appellant appeared before the ONCA to appeal Justice Nicholson’s dismissal of the 14B motion and requests that the court set aside Justice Nicholson’s Order as well as all of Justice Fryer’s previous Orders.

Analysis

Counsel for the appellant argued that the motion before Justice Nicholson was brought under Rule 25(19) of the Family Law Rules. This rule provides the Court permission to vary or change an order in certain circumstances, namely if the order was obtained by fraud. This rule was not specified in counsel’s Notice of Motion however he based his argument on the allegation that the respondent had defrauded the Court through misrepresentations and material omissions in the evidence she presented at the uncontested trial. Justice Nicholson did not address this but instead dismissed the motion on the basis that Justice Fryer’s Orders could not be set aside because the husband had not appealed any of them.

The Court agreed that Rule 25(19) of the FLA was a more effective and appropriate way for the husband to correct orders than an appeal. However, the Court noted that some of Justice Fryer’s previous orders were specifically because of the appellant’s own failure to produce disclosure and therefore not the respondent’s alleged fraud. In that respect, Justice Nicholson was right that the husband would need to bring an appeal to set aside those orders.

Conclusion

The ONCA partially allowed this appeal and the husband’s allegations of the wife’s fraud will have to be returned to the Superior Court of Justice.

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