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Default Family Orders (Undefended Orders)

Setting aside a default Order

There can be circumstances where a party to a proceeding does not defend the action, is unaware of the action, or for some other reason does not participate in the litigation. The Family Law Rules provide that such a party can be noted in default and that a Default Order can be made against that party.

The Family Law Rules also provide that such an Order can, in certain limited circumstances, be set aside (cancelled).

As a general rule, the defaulting party needs to explain why he/she did not defend the action or explain the noncooperation.

There are several factors to be considered by a Court before setting aside an Order. The jurisdiction of the court to set aside a Final Order arises as a result of combining Rule 1 of the Family Law Rules and rule 19.08 of the Rules of Civil Procedure.

The Ontario Court of Appeal has held that, generally, there are three (3) issues that must be determined by the court in exercising its discretion to set aside a Default Order:

  1. Whether the motion to set aside the default judgment was made as soon as possible following the moving party’s discovery of the judgment;
  2. Whether the moving party has established that there exists a sufficient explanation for the default; and
  3. Whether the moving party has set forth sufficient evidence to establish that there is at the very least an arguable case to present on the merits.

In applying its discretion, the Court need not apply all 3 factors rigidly. For example, it is more important for the Court to find that the Moving Party has an arguable case on its merits than to penalize that party for not moving quickly enough to set aside the Default Order.

In any event, if you are faced with such a situation, you should consult a family lawyer to determine whether or not you have a case for setting aside a Default Order.

As a rule, such a party should move as quickly as possible to address such an issue.

Contact Marc J Coderre (family lawyer Orleans/Ottawa) to discuss any issue regarding family law matters.

Marc J Coderre – Orleans (Ottawa), Ontario Family

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