When a family law application is filed, the respondent has a window of time to file their Answer. If they fail to provide the required documents within the time limit, the applicant may ask the judge to schedule an uncontested trial, which restricts the respondent from participating in the proceedings. This means the case will proceed without the respondent’s input and will be argued in the respondent’s absence. For a respondent, there is the risk that the court may not have all of the information when making a decision, which can result in results that are prejudicial to the respondent. When this happens, can a respondent try to have the order set aside?  

What is an Uncontested Trial? 

Under Rule 10(1) of the Ontario Family Law Rules, a respondent has 30 days to file an Answer after receiving a family court application. If a respondent does not serve and file an answer, the consequences in Rule 1(8.4) apply, which means that:

  1. The party is not entitled to any further notice of steps in the case;
  2. The party is not entitled to participate in the case in any way;
  3. The court may deal with the case in the party’s absence; and 
  4. A date may be set for an uncontested trial of the case.

An uncontested trial is one where only the party advancing the claim provides evidence and makes submissions. This restricts a respondent from participating in proceedings which can significantly impact any result. However, in Obhan v. Chana, the Court cautioned that even when a respondent has not provided an Answer, courts still need to ensure that proper evidence is filed by the applicant so that judges can make a proper order. 

Court May Overturn an Order From an Uncontested Trial 

The case of Kowalski v. Asselin-Kowalski involved a series of unusual circumstances in which the appellant sought to appeal from a final order determining child support, spousal support, and equalization granted over 10 years earlier. The significant passage of time was due to the appellant’s mental health issues. The issues were originally dealt with in a 2007 trial which proceeded in the appellant’s absence, though the appellant’s brother advised the court that she could not attend due to her health. She also failed to participate in the subsequent motion to set aside the final order, and that motion was dismissed.

The appellant argued that she was physically and mentally incapable of attending the proceedings and, therefore, the final orders should be set aside. The appellant wished to introduce fresh evidence that set out her medical history, psychological assessment, and financial statements. The Court admitted the new evidence as it could not have been provided before the original trial, and it was critical to the issue on this appeal. If the fresh evidence explained her failure to attend the trial, it might require the original order to be set aside to prevent an unjust result. 

Wife’s Inability to Attend Trial Due to Incapacity Causes Orders to Be Set Aside

The appellant had been disabled from working and received disability pension benefits since 1999. The fresh evidence indicated she had had mental health issues since 1995. The respondent accepted this but disputed that the appellant lacked the capacity to attend the proceedings, noting that there was no formal opinion of incapacity. The Court explained that the appellant’s incapacity had to be serious enough to explain her absence, but she did not have to prove a specific level of incapacity.

Moreover, the evidence did establish that appellant was incapable of dealing with her trial. Within days of the uncontested trial, she was found incompetent and taken to the hospital by police for a mandatory assessment and was involuntarily admitted to the hospital. While in the hospital, she became aware of the final order and began a motion to set it aside. The Court accepted that the uncontested trial carried financial consequences for the appellant, as she was required to make an equalization payment, and her claims for child and spousal support were dismissed. There was also a serious issue stemming from the applicant’s claim for compensatory and needs-based support, given her disability and her care of the children without support from the respondent. Consequently, justice required the final order be set aside and the issues determined in a new trial. 

Courts Cautious About Repeat Litigation 

In Lucreziano v. Lucreziano, the husband brought a motion to set aside a final order stemming from an uncontested trial. The wife obtained the order after the husband failed to file responding materials on a motion. The husband now argued that the equalization and spousal support calculations in the order were based on inaccurate information and misrepresentations. He specifically argued that the wife failed to provide full financial disclosure and incorrectly identified corporate bank accounts as his personal assets, misrepresented the value of the matrimonial home, attributed an incorrect value to a cottage, and failed to acknowledge a joint debt.

Husband Argued Test for Setting Aside Default Judgment Met Due to His Inability to Understand Litigation

The husband pointed to Rule 25(19) of the Family Law Rules, which provides courts with the authority to change an order that contains a mistake, was made without notice, or was made with notice, but the party was unable to be present. The husband referred to the legal test in Mountainview Farms Ltd. v. McQueen, which outlines when courts may set aside a default judgment. That test requires the court to consider:

  1. The timeliness of the motion to set aside the default judgment;
  2. Whether there is a plausible excuse or explanation for the party’s default in complying with the Rules;
  3. Whether the party has an arguable defence on the merits; 
  4. The potential prejudice to the parties; and
  5. The overall effect of any order on the integrity of the administration of justice. 

The husband argued that he met the five factors set out in Mountainview Farms Ltd. He received the order on October 6 and retained counsel by October 19, who then corresponded with the wife’s counsel, asking for a deferral of the order’s enforcement. He also explained that he had been prescribed OxyContin for a back injury, and the long-term use of the drug affected his mental health, making it difficult for him to understand the litigation. Additionally, he suggested the order was prejudicial and that he would suffer financial hardship if the order was not overturned.

Court Unconvinced By Husband’s Explanation for Missing Trial

In its review, the Court noted that the trial was uncontested as the husband failed to comply with several court orders. According to Gray v. Gray, under Rule 25(19), courts can set aside an order if it furthers the objective of dealing with cases justly. The Court also accepted that the five factors in Mountainview Farms Ltd. should not be rigidly applied and that judges have discretion in setting aside a default judgment.

Applying the factors, the Court decided that the husband had not given an adequate explanation for his default, as the medical records were not convincing that his mental health restricted him from participating in the trial. Although he was given opportunities to participate in the trial and provide financial information, he did not. And while he would be prejudiced by the order, it was a result of his own failure to participate in the proceedings.

Conversely, the wife spent time and resources complying with her obligations, and she could rightly be concerned that the litigation would start afresh if the order was set aside. As repeat litigation benefitted no one, the judge found that prejudice to the wife weighed in favour of dismissing the husband’s motion to set aside the order. Finally, the court reiterated the basic obligation of making financial disclosure and complying with court orders. As the husband could not show an arguable defence, dismissing his motion was consistent with the objective of seeing that matters are dealt with justly. 

There Are Consequences to Not Responding to an Application 

A trial may proceed on an uncontested basis if a party fails to respond to the court application. And when individuals do not participate in their trial, they may face an order founded on incorrect information that does not meet their legal interests. While there is a framework to set aside a court order for a mistake or misrepresentation, the party must justify why they initially failed to participate. If there is a justifiable reason, courts have been willing to order new trials even if there has been a long passage of time. However, courts also guard against unnecessarily repetitive and protracted litigation. 

Contact NULaw in Toronto for Comprehensive Family Litigation Solutions

NULaw understands the stress caused by separation, divorce, and other family law disputes. Our team provides compassionate, robust legal solutions to protect clients’ rights and entitlements and help their families move forward. We are fully prepared to advocate for clients in various legal forums, including alternative dispute resolution (including negotiation, mediation, and arbitration) and litigation. To schedule a consultation, please call 416-481-5604 or reach out online.

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