For various reasons, family law litigants may fail to participate in their court proceedings, placing them at risk of being "noted in default". The court may then make "uncontested" orders in their absence, based on the evidence of the moving party only. It may come as a great surprise to learn that these orders are often detrimental to the absent litigants' interests. As a result, they may seek to change or set aside these orders. Sometimes, litigants learn about these court orders for the first time when the Family Responsibility Office informs them of their significant support arrears.

Until the Ontario Court of Appeal's decision in Gray v Gray 2017 ONCA 100, there was confusion in Ontario regarding the appropriate route to remedy uncontested orders. One line of cases relied on section 25(19) of the Family Law Rules to set aside orders, which allows the court to "change" orders based on a list of factors, despite the rule making no explicit mention of "setting aside" an order.

Another line of cases rejected this approach, instead relying on either the court's inherent jurisdiction to set aside an order to prevent a miscarriage of justice, or rule 19.08 of the Rules of Civil Procedure, which provides the court with jurisdiction to set aside orders in ordinary civil matters.

Gray v Gray settled this dispute and concluded that family law litigants may appropriately rely on section 25(19) of the Family Law Rules to set aside uncontested orders. The actual test to be applied on a motion to set aside an order appears to be unchanged from the previous jurisprudence, however. This test remains consistent with the primary objective of the Family Law Rules to deal with cases justly. To this end, the Ontario Court of Appeal in Mountain View Farms Ltd. v. McQueen 2014 ONCA 194 held that dealing with a claim to set aside an order justly requires a consideration of the following factors:

  1. Whether the motion was brought promptly after learning about the judgment;
  2. Whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules;
  3. Whether the facts establish that the defendant has an arguable defence 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; and
  5. The effect of any order the court might make on the overall integrity of the administration of justice.

If you believe you have grounds to set aside an order, it is important to speak with knowledgeable family counsel promptly, as any additional delay has the potential to cause significant prejudice to your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.