By Maria Golarz, Senior Associate Research Lawyer,
Lam Family Law*

A court may set aside an order that has noted a party in default and/or an order made on an uncontested trial, pursuant to R. 25(19)(e) of the Family Law Rules, O Reg 114/99: Gray v. Gray, 2017 ONCA 100, at paras 26-32.

Rule 25(19) of the Family Law Rules reads:
Changing order — fraud, mistake, lack of notice
(19) The court may, on motion, change an order that,

  • (a) was obtained by fraud;
    (b) contains a mistake;
    (c) needs to be changed to deal with a matter that was
    before the court but that it did not decide;
    (d) was made without notice; or
    (e) was made with notice, if an affected party was not present
    when the order was made because the notice was inadequate
    or the party was unable, for a reason satisfactory to the court,
    to be present.

In the recent decision of Beaudette v. James (2024), Justice Jenner gave a helpful overview of the principles to be applied on a motion to set aside a default order: Beaudette v. James, 2024 ONCJ 115 (CanLII).

The onus is on the party who moves to set aside the order: para 25, citing Irons v. Irons, 2020 ONSC 1471 (CanLII).

The decision as to whether to set aside is a matter of judicial discretion: para 25, citing Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 (CanLII), at paras 47-51.

The Court of Appeal for Ontario (“ONCA”) set out a five-factor test for setting aside a default order in Mountain View Farms Ltd. v. McQueen (2014):

  1. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;
  2. Whether the moving party has established that there exists a plausible excuse or explanation for the default;
  3. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;
  4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed;
  5. The effect of any order the motion judge may make on the overall integrity of the administration of justice: para 26, citing Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 (CanLII), at paras 47-51.

The ONCA “rearticulated and supplemented” these factors for the family law context in Zia v. Ahmad (2021):

  1. Whether the moving party moved promptly, after learning of the order, to have it set aside;
  2. Whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;
  3. Whether the moving party has established an arguable case on the merits;
  4. Whether the moving party is acting in good faith and with “clean hands”;
  5. The prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and,
  6. Whether, in the final analysis, the interests of justice favour setting aside the judgment: para 27, citing Zia v. Ahmad, 2021 ONCA 495 (CanLII), at para 4.

In Beaudette v. James, Justice Jenner briefly reviewed the jurisprudential debate over whether the court must make a finding of fraud, mistake, omission, lack of notice, or “satisfactorily explained absence”, i.e., can a party without a good excuse for being noted in default still succeed if the other factors are “sufficiently compelling”? However, the facts of this case did not require a definitive answer: paras 28-30.

In this case, the mother moved to set aside both an order noting her in default, as well as an order made following an uncontested trial: para 1. She was self-represented and attended the first court appearance. However, despite being granted additional time, she did not file a response to the father’s motion to change. She also did not attend two subsequent court appearances: first, claiming she could not unmute herself in virtual court, and second, claiming she slept through court: paras 4-7. She was immediately advised of being noted in default, and of the uncontested trial date: para 8. For unknown reasons, the uncontested trial was rescheduled to an earlier date, but no communication was sent to the mother: para 10. At the uncontested trial, a final order granted the father sole decision-making responsibly and primary residence, with supervised parenting time to the mother: para 11. The mother took steps to set aside the order and eventually brought the current motion, 10 months after learning of her noting in default and 8-9 months after learning of the final order: paras 12-13 & 37.

Justice Jenner considered the aforementioned factors and refused to set aside either order:

(1) The evidence did not support that the mother moved quickly after learning of her noting in default or the final order. While some delays occasioned by seeking legal assistance can be justified, where the process unfolds over a protracted period, it is “incumbent on the requesting party to provide a detailed account of their efforts, and where appropriate to advise the other party of their intention”: paras 31-37.
(2) While the mother had “not provided a very satisfactory account” of her failure to respond, it was not the “most egregious illustration of non-compliance.” This moderated the weight, to some degree, of the second factor: paras 38-39.
(3) The mother’s “broad and conclusory statement, bereft of detail or corroborative evidence” fell short of an arguable case on merits: paras 40-44.
(4) While there was no evidence of “bad faith”, the mother had still not paid a costs award from nearly two years ago, without explanation: para 45.
(5) While it is preferable, in determining a child’s best interests, to have the benefit of input from all relevant parties, the court could not conclude, in this case, that it served the child’s best interests to recommence the motion to change in the absence of “detailed and cogent evidence” on the parenting issues: paras 46-50, citing King v. Mongrain, 2009 ONCA 486 (CanLII).
(6) Overall, the court found that the “modest prejudice” to the mother in dismissing her motion was outweighed by the prejudice to the father if it was granted. Similarly, it would be contrary to the primary objective of the Family Law Rules (i.e., to deal with cases justly), and would send the wrong signal to other litigants about the need to rectify a noting in default urgently: paras 51-53.

This case reinforces the high threshold for setting aside a default order in family law. In several other recent family law cases, the court has refused to set aside a default order.

  • See, e.g., Fasullo v. Fiorini, 2024 ONSC 639 (CanLII) (Div Ct), at paras 1-5 & 16-23 [parenting and child support; no error in dismissal of motion to set aside default order; moving party acted quickly but did not have plausible explanation nor arguable case on merits];
  • Recoskie v. Lucchitti, 2024 ONSC 2823 (CanLII), at paras 1 & 10-27 [spousal support; none of the factors met; evidence did not support fraud allegation];
  • Singla v. Tayal, 2023 ONSC 688 (CanLII), at paras 1-2 & 7-21 [divorce; evidence of prejudice to litigation in foreign jurisdiction was “weak and clearly insufficient”].

For a recent case where the moving party did meet the threshold for setting aside a default order, see Phelan v Gilvin, 2023 ONSC 3917 (CanLII). In that case, which addressed parenting, support, and property issues, the moving party moved promptly, had an “adequate” – although not “perfect” – explanation; the other party did not have “clean hands” with respect to disclosure; there was an arguable case on the merits; and any prejudice to the other party could be addressed by costs: paras 1-4 & 6-28.

In that case, Justice Chown also provided a “Practice Point” for parties seeking an order following an uncontested trial: at paras 29-32. In short, it is best practice to give notice and serve the materials for an uncontested trial on the defaulting party. This ensures they have knowledge of the proceeding and appears to have chosen not to participate. When this is done, the judgment is “much more likely to withstand a motion to have it set aside or changed.”

*with thanks to Vanessa Lam for her suggestions and edits.