In a previous motion, the court had made an order striking the respondent’s pleadings as he has failed to provide required disclosure and did not follow court orders. The court had found his misconduct to be willful, exceptional, and egregious. Thus, following the leading case on what to do in this scenario (Mullin v. Sherlock), the court struck the respondent’s Answer/Claim by Respondent, any notices of motion he had filed, his affidavits, his financial statements, and his certificates of financial disclosure. Nonetheless, the respondent was allowed some augmented participation rights at trial.
This order was not appealed, but the respondent later brought this motion to have his pleadings reinstated and, if they were not, to increase his participatory rights at trial.
Should the respondent’s pleadings be reinstated, or should he be afforded increased participatory rights at trial?
Per Rule 25(19) of the Family Law Rules (FLR), the court has the authority, on motion, to change an order that:
(19) (a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
Here, the court held that the case facts did not fit within the situations listed under Rule 25 (19), but there was authority to apply rule 19.08 of the Rules of Civil Procedure, in order to deal with the matter justly, as is the primary objective of the Family Law Rules (Rule 2(2) FLR).
Rule 19.08 of the Rules of Civil Procedure provides that a default judgment can be set aside on “just” terms. Per the Court of Appeal in Mountain View Farms Ltd v. McQueen, the court is to determine whether the interests of justice favour granting the order, in considering five factors:
a) Whether the motion was brought promptly after the respondent learned of the default judgment;
b) Whether there is a plausible excuse or explanation for the defendant's default in complying with the rules;
c) Whether the facts establish that the respondent has an arguable defence on the merits;
d) 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
e) The effect of any order the court might make on the overall integrity of the administration of justice.
In considering these factors (which need not all be satisfied for a judge to grant relief), the court found as follows:
- The respondent’s delay in bringing the motion was not excessive: he had planned to bring it on the first available date after his pleadings were struck, but was delayed by the applicant’s change of counsel.
- Though no excuse was provided for the respondent’s failure to comply with the rules and orders, efforts had been made to come into substantial compliance.
- The striking of pleadings was the sanction imposed because of the respondent’s failure to disclose the necessary information for the court to make a proper decision. To maintain the integrity of the administration of justice, the court must be in a position to make decisions fully informed, and taking steps now to compromise the court’s ability to do so would be counterproductive.
- There would be no legitimate source of prejudice to the applicant if the matter were to go through the normal court process, as opposed to an uncontested trial where her evidence would not be challenged. There was potential for prejudice to the respondent and the applicant, though, should a result be obtained based on incomplete evidence.
The court sought to ensure that its order did not exonerate the respondent, but that it provided for a proper evidentiary basis so that a fair judgment could be made. The judge was satisfied that the respondent was making progress in terms of providing disclosure, and this influenced the court in ultimately deciding to reinstate his pleadings.
The respondent also sought an order for a settlement conference. Citing the fact that litigants should know that settlement is the preferred option, instead of trial, to resolve issues, the court ordered the parties to attend one or more settlement conferences before any trial.