This case is a decision regarding a motion brought by the Respondent father to set aside or vary certain portions of the party’s Final Order.
The parties married on July 5, 2014, and separated on December 17, 2021. They had two children together during their marriage.
When litigation commenced, the Respondent father did not participate in the proceedings and was noted in default. The Applicant mother was then permitted to proceed in writing to obtain a Final Order on an uncontested basis. She obtained a Final Order on April 3, 2023, relating to decision-making responsibility, security for child support, consent for travel by the children, and equalization.
In this Motion, the Respondent father was seeking to set aside certain portions of this Final Order on the basis of fraud pursuant to subrule 25(19) of the Family Law Rules. He alleged that the Applicant mother made false and misleading statements in her Affidavit about the Respondent having left Canada permanently, as well as that there was a mistake made in determining the equalization payment ordered.
The court reviewed case law setting out the framework for determining whether the interests of justice favour granting an Order to set aside a default judgment, which is reproduced below:
- Whether the motion was brought promptly after learning of the judgment,
- Whether there is a plausible 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.
The court noted that the above framework is not to be treated as rigid rules but must be considered by the court to determine whether it is just to relieve the defendant from the consequences of their default.
The court applied the above framework to the case at hand, noting the following:
- The Respondent did not bring the motion promptly after he was made aware of the Final Order. He received same in April of 2023 and did not bring this Motion until November of 2023.
- The Respondent submitted he was unable to participate in the proceedings due to depression, however, he failed to provide sufficient evidence of his mental health issues and provided no link of same to his inability to respond to the family law proceedings.
- The Respondent did not demonstrate an arguable defence on the merits as it was unclear to the court that shared decision-making would have been granted, or that security for child support would have been unnecessary had he participated in the proceedings.
- Any prejudice to the Respondent as a result of the Final Order was a consequence of his failure to participate in the proceedings. Further, the Applicant would be prejudiced if all her efforts to obtain the Final Order were to be set aside.
- The overall integrity of the administration of justice does not weigh in favour of changing or setting aside the provisions of the Final Order. Parties to family law proceedings must understand the importance of participating and following the applicable rules, and that failure to do so will result in consequences.
As the Respondent is seeking to set aside portions of the party’s Final Order on the basis of fraud, he must prove that the Applicant knowingly or recklessly made a false statement with knowledge of the falsehood, and did so with wrongful intent. The omission of essential facts would be sufficient to set aside the portion of the Order to which these facts would apply, even where it cannot be concluded that a party deliberately intended to mislead the court.
The Respondent submits that the Applicant mislead the court by failing to confirm in her Affidavit that she knew about his return to Canada, and by swearing that he had no intention to pay child support. However, the court noted that the Respondent provided little evidence of the time he had been in Toronto, and there was no evidence to suggest that the Applicant knew he returned permanently. Further, the court was not satisfied that the Applicant’s statement regarding the Respondent’s lack of intention to pay child support was false or misleading as at the time, the Respondent was not paying any amount toward supporting the children or the expenses on the matrimonial home. As such, the court did not find there was justification to set aside the Final Order on the basis of fraud as there was no evidence to suggest the Applicant knowingly or recklessly made any false or misleading statements in her Affidavit.
The court, however, did note that there was a miscalculation with respect to equalization, and amended the amount due to correct same.
The Respondent’s motion was dismissed, except in respect of the inadvertent error regarding equalization.