Uncontested Trial
What is an uncontested trial?
An uncontested trial is when the respondent is not allowed to be involved in the family court case since they did not answer the family court application after 30 days. If the respondent fails to answer, only the person who filed the applicant is allowed to present evidence and make submissions. The applicant must present proper evidence, so the judge can make a proper decision.
What are the risks of an uncontested trial?
The risks of an uncontested trial for the respondent are detailed in Rule 1(8.4) :
- They would not be notified of any steps in the case
- They are not allowed to be involved in the case in any way
- The court might deal with the case without the respondent being present in court; and
- A date may be scheduled for the uncontested trial
How are uncontested trials heard?
Uncontested trials are heard through affidavit evidence which are written statements that contain evidence by the person who filed the family court application. In some cases, the court may ask for an oral hearing where the person must clarify their statements in court.
Which rule covers affidavit evidence at uncontested trial?
Rule 23(22) covers affidavit evidence, “an uncontested trial, evidence by affidavit in Form 14A or Form 23C and, if applicable, Forms 35.1 and 35.1A may be used without an order under clause 1 (7.2) (i), unless the court directs that oral evidence must be given. “
Is it a “free for all” for the applicant?
Even though the case may be approved to be an uncontested trial, it is not a “free for all” or “rubber stamp” for the applicant as they must present proper evidence to prove their case. In L. v. L. (2024 ONSC 1444), Justice Jarvis declined an uncontested trial to grant the relief sought by the mother. This is a reminder that an uncontested trial, sometimes referred to as a chambers trial, still requires proper presentation of “trial worthy evidence”.
What is required of you (To Do List) in an uncontested trial?
- Compliance with the Rules is not relaxed when the matter proceeds by way of an uncontested trial. Lawyers and parties must ensure that financial statements must be updated – Net family property statements and certificates of financial disclosure must be filed where applicable.
- A factum must be filed with applicable statutory provisions and case law.
- Do not expect the court to fill in any evidentiary gaps.
- Do not rely on the court’s discretion to ask for additional evidence. Prepare your client’s materials as though the trial is proceeding in open court.
- Do not rely on the lack of financial disclosure provided by the other party. If your client is unable to obtain the evidence, ensure that your client has taken further steps to try to obtain the relevant evidence.
What is a default judgment?
Default judgment is when the court makes a decision in favour of one person due to the other person failing to answer or be present in court.
Can an order be overturned from an uncontested trial?
An order can be overturned from an uncontested trial if the respondent provides evidence as to why they could not be present. For example, a person may have mental health issues at the time of the case which led to their absence at the trial. They must provide documents to prove they were going through mental health issues to possibly overturn the order.
What are the five factors to consider in setting aside a default judgment?
The five factors to consider in setting aside a default judgment are:
- How quickly the motion was made after learning about the default judgment
- If there is reasonable excuse or explanation for not following the Family Law Rules
- Whether the evidence shows that the defendant has a valid defense
- How dismissing or allowing the motion could unfairly affect the persons involved
- What impact the decisions made by the court would have on the justice system overall