Set Aside an Uncontested Order
Why would you need to set aside an order?
For various reasons, family law litigants may fail to participate in their court proceedings. They are “noted in default”.
The court makes “uncontested” orders in their absence, solely based on the evidence of the moving party.
Afterwards, they see the order and look to change or set aside these orders since they did not have any input into the order.
How do you remedy uncontested orders?
Gray v. Gray clarified the approach to be followed for remedy uncontested orders. The Court of Appeal clarified that family law litigants may appropriately rely on Rule 25(19) of the Family Law Rules to set aside uncontested orders.
Family Law Rules, 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.”
What factors are considered in setting aside an order?
The Court of Appeal in Mountain View Farms Ltd v. McQueen 2014 ONCA 194 held that a claim to set aside an order should consider the following factors:
- Whether the motion was brought promptly after learning about the decision;
- Whether there is a reasonable excuse or explanation for the defendant’s default in complying with the Rules;
- Whether the facts establish that the defendant has an arguable defence on the merits;
- 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
- The effect of any order the court might make on the overall integrity of the administration of justice.