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In this case, the court heard an appeal requesting a default order to be set aside. The appeal was ultimately dismissed.


The parties married on October 14, 2012, and had one child together. They separated on August 23, 2020.

Between August 24, 2020, and June 13, 2021, the respondent’s counsel made 12 requests for disclosure and the payment of child support from the appellant. The correspondence warned the appellant that if he did not cooperate, the respondent would go to court.

The respondent served their Application on July 20, 2021. The appellant did not serve or file an Answer or a Financial Statement. Until April 5, 2023, approximately one month before the motion at hand, the appellant did not pay any child support and provided only one paystub for disclosure.

The matter proceeded as an uncontested trial on September 29, 2022, whereby the default order including orders for parenting and child support was made.


The court reviewed the decision of Mountain View Farms Ltd and McQueen, which discussed the relevant factors a motion judge must consider to set aside a default order. These factors include:

  1. Whether the moving party moved promptly after learning of the default judgment;
  2. Whether the moving party has a plausible explanation for the failure to respond and comply with the Rules;
  3. Whether the facts establish that the moving party had an arguable case on the merits;
  4. What is the potential prejudice to the moving party if the default order is not set aside, and what is the potential prejudice to the other party if the order is set aside; and
  5. What is the effect of the order made by the court on the overall integrity of the administration of justice.

The court also noted that a motion judge’s decision to set aside a default judgment is a discretionary one that will attract deference on appeal. It should not be interfered with absent an error in law or principle, a palpable and overriding error of fact or unless the decision is so clearly wrong as to amount to an injustice.

In applying the case law to the facts at hand, the motion judge was not convinced that the appellant had an arguable case on the merits with respect to the parenting and child support orders in the default order. There was no evidence provided by the appellant that supported that the parties shared almost 40% of the parenting time leading up to the default hearing, and even if this evidence had been provided, the court was not convinced it would have resulted in a different child support order being made.

The motion judge also found that the appellant’s delay and failure to meaningfully participate in the proceedings created a status quo for the child, and further found that the appellant acquiesced to the plan that existed at the time the default order was made. The appellant’s behavior was not seen to be the behavior of a parent who genuinely wishes to change the parenting schedule, nor were any concerns raised that the parenting plan was inconsistent with the child’s best interests.

The court also did not find that the default order prejudiced either party. The appellant needs to establish a material change in circumstances in order to change the order. The respondent would actually be prejudiced if the default order was set aside as she would face additional costs, delay and stress of pursuing litigation with a party who was previously not participating in the proceedings.


The court ultimately held that if the court were to set aside the default order based on the facts at hand, it would bring the administration of justice into disrepute and valuable court resources would be wasted. As such, the court declined to set aside the default order.