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Wharry v. Wharry 2017 ONSC 2895

This case explores the limits of a court’s power to reopen its own case after a final judgement has been rendered.


The parties were married for 14 years. Upon separation, the husband was ordered to pay the wife $80,449 as an equalization payment. Included in this calculation was the value of property in Ireland that he had received from his father during the marriage. The wife brought a motion under Rule 25(19) to change the final order because she claimed there was a mathematical miscalculation. This error caused his NFP, as well as his equalization payment, to be lower than they ought to have been.


Rule 25(19)(b) of the Family Law Rules states that a court may, on motion, change an order that contains a mistake.

Judges have a right to remain involved or “seized” of a matter in case it needs further review. However, there is a principle in law known by its Latin name “functus officio.” This term means “of no further power/authority.” When a final order is signed by a judge there is a tendency in law to treat their duty as discharged. As a result, that judge is no longer an authority who can pass judgements on that case, unless they invoke their right to stay seized of it.

In this case the judge became functus officio when the order was issued and entered. There is a narrow exception to this legal principle that provides a judge enduring jurisdiction in a matter if they made a mistake in writing out the judgement.

The judge in this case cites a case called Abitol v. Abitol, 2017 ONSC 571. A mistake within the meaning of rule 25(19)(b) is meant to refer to a technical mistake due to an oversight. The rule allows room for correction so that the court’s intention can be accurately reflected. This rule was not meant to be used to allow the power to revisit, reopen and reargue a case or let a court to appeal its own decision.

The wife was seeking a change in the legal nature of the order, because she sought to have her husband’s interest in a bungalow home added to his NFP. This was more than simply a mathematical error, and would change the entire outcome of the order. Her motion was therefore dismissed because the relief she sought was outside the scope of the judge’s jurisdiction.