BACKGROUND

The parties were in a relationship for just over a year and separated in November 2023. They share a child, born in 2023, who primarily resides with the mother. 

The mother initiated court proceedings. The father did not file any responding materials, resulting in an uncontested trial on August 15, 2024, where the court determined decision-making responsibility, parenting time, and child support on a final basis.

Subsequently, the father sought an Order to set aside the final Order dated August 15, 2024. He claimed he was not properly served and was unaware of the proceedings. He also requested permission to file an answer, affidavit, and financial statement within 30 days, as well as an order for the parties to schedule a Case Conference.

The mother disputed the claim of improper service, asserting that the father was aware of the proceedings through his counsel but chose not to participate. She opposed the motion and sought to uphold the August 15, 2024, Order.

LAW AND ANALYSIS

Rule 2 of the Family Law Rules identifies that the primary objective of the Rules is to enable the court to deal with cases justly. That mandate includes ensuring that there is fair procedure for all parties and also includes the saving of time and expense. Matters are to be dealt with proportionately to their importance and complexity.

Rule 25, clause (19)(e) permits the court, on motion, to set aside an order that "was made on notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for reasons satisfactory to the court, to be present."

As a preliminary matter, the court ruled that service of the application was properly made to the father’s previous counsel as they had indicated in writing that they were counsel of record and had authorization to accept service. Despite the father’scontention that he did not give instructions for service, the court concluded that the service was valid.

When considering whether to set aside a default judgment, the following factors must be considered as per Mountain View Farms Ltd. v McQueen, 2014 ONCA 194:

Was the motion brought promptly after the moving party learned of the default judgment?

The court determined that the respondent moved with reasonable promptness once hebecame aware of the Final Order, dated August 15, 2024, in September 2024. The motion to set aside was filed in December 2024 after the respondent retained new counsel, which was deemed timely.

Was there a plausible excuse or explanation for the moving party's default in complying with the rules?

The court accepted the father’s explanation of miscommunication with his previous counsel, as he was not properly informed about the proceedings or the court application. This explanation was deemed a plausible excuse for the default.

Did the moving party set out facts that support the conclusion that there is at least an arguable defence on the merits?

The father presented facts suggesting an arguable defense, particularly regarding parenting time and his involvement in his daughter's care. He disputed the $100,000 income imputed to him at the uncontested trial and contested the sole decision-making authority proposed by the mother. The court found the facts sufficient to establish at least an arguable defense on the merits.

What is the potential prejudice to the moving party if the motion is dismissed compared with the potential prejudice to the responding party if the motion is granted?

The father claimed prejudice from the default judgment, particularly regarding supervised parenting time, lack of decision-making rights, and financial imputation. The court acknowledged this prejudice, emphasizing that the father had not had the opportunity to challenge these provisions.

The mother, on the other hand, would face prejudice if the judgment were set aside, particularly in terms of the costs incurred in pursuing the application. However, the court noted that the mother would have had to bear these costs even if the matter had proceeded regularly.

What is the effect of any order the court might make on the overall integrity of the administration of justice?

The court concluded that the administration of justice would be best served by allowing both parties to present their positions on the merits. The court emphasized fairness and the importance of considering both sides in family law disputes.

CONCLUSION

The court found that the father had met the necessary requirements to set aside the default judgment, and it was in the interest of justice to allow both parents to present their positions. Therefore, the default judgment was set aside, and the matter would proceed with both parties participating. The court noted that the issue of costs could be addressed separately.