BACKGROUND:
The parties are married and separated in October 2024. They jointly own a matrimonial home in Brantford, Ontario. Since separation, the Respondent Husband has lived in the matrimonial home, while the Applicant Wife has resided with her sister in Guelph.
The Applicant Wife issued her Application in March 2025. Justice Lemon ordered substituted service by affixing documents to the main entrance and sending by regular mail. Accordingly, service was effected in June 2025. The Respondent Husband did not file his Answer or attend any subsequent court appearances, including a case conference and motion hearings.
Justice Juginovic ordered the sale of the matrimonial home in January 2026, with ancillary orders regarding the procedure for listing the property for sale and dispensed with the need to obtain the Respondent Husband’s consent if her refused to cooperate with the sale. Additionally, Justice Juginovic ordered that if the Respondent Husband interfered with the listing or sale of the property, the Applicant Wife could bring a motion on three (3) days’ notice for further relief.
The Respondent Husband did not cooperate with the listing of the property. The Applicant Wife brought a motion for further relief to facilitate the sale of the matrimonial home. Justice Fowler-Byrne granted the Applicant Wife exclusive possession of the matrimonial home pending its sale in March 2026. Additionally, Justice Fowler Byrne ordered the Respondent Husband to vacate the matrimonial home and remove all his personal belongings within 15 days of service of the order. Justice Fowler-Byrne also directed that service of her order be conducted by placing a copy of the issued order in the Respondent Husband’s mailbox at the property and taking and preserving a photograph confirming same. She further ordered that, if the respondent did not vacate the property, the Applicant Wife could request issuance of a writ of possession and file the writ with the Sheriff’s office for enforcement.
The Respondent Husband did not comply with any of the above orders. As such, the Applicant Wife obtained a writ of possession and provided the Respondent Husband with a notice of impending eviction in May 2026.
Pursuant to Rule 25(19)(e) and (d) of the Family Law Rules, the Respondent Husband brought a motion for an order to set aside or stay the enforcement of both Justice Juginovic and Justice Folwer-Byrne’s orders, on the basis that he had no notice of the earlier court proceedings until he received the eviction notice.
ISSUE:
- Should the orders of Justice Juginovic and Justice Fowler Byrne be set aside or stayed pursuant to Rule 25(19) of the Family Law Rules?
ANALYSIS:
Rule 25(19)(e) and (d) of the Family Law Rules authorizes a court, on motion, to vary, suspend or set aside an order that was made without notice, or was made with notice, if an affected party was not present when the order was made due to inadequate notice or because the party was unable to attend due to reasons deemed satisfactory to the court.
The Respondent Husband argued that he did not have notice of the earlier motions and was therefore, not present when the motions were argued and the impugned orders were made. Furthermore, the Respondent Husband relied on the Ontario Superior Court’s earlier decision in Abitol, 2019 ONSC 5964, which adopted factors considered in civil proceedings to determine whether a default judgement should be set aside. The relevant factors are:
- whether the motion to set aside was brought promptly after the moving party learned about the order;
- whether there is a plausible explanation for the moving party’s default;
- whether the moving party has an arguable defence on the merits;
- the prejudice to each party (if the motion is granted or dismissed); and
- the effect of the order on the integrity of the administration of justice.
The court held that a consideration of the factors adopted in Berranoch v Abitol, is premised on a threshold finding that Rule 25(19) applies. As such, the court first considered whether Rule 25(19) applied.
After hearing submissions from both parties, the court rejected the Respondent Husband’s evidence as not credible based on overwhelming evidence that the Applicant Wife had complied with the court-ordered substituted service. This evidence included photographs taken by the Applicant Wife that showed that the envelope was clearly visible to anyone who approached the front entrance of the home, that the envelope was no longer in the mailbox the day after it was delivered, and emails that the Applicant Wife sent to the Respondent Husband that received no response. Based on this evidence, the court stated, “common sense dictates that the documents would have come to the respondent’s attention”.
There was also no evidence to suggest that the Respondent Husband was residing elsewhere or was away from the matrimonial home for an extended period, to have missed the multiple attempts of substituted service or notices affixed to his front door.
Based on this, the court found that the Respondent Husband received proper notice of both motions and chose to ignore them. As such, Rule 19(25)(d) does not apply. Furthermore, the court held that Rule 19(25)(e) does not apply because the Respondent Husband had not provided a satisfactory reason for why he was unable to be present when the two motions were argued.
Although the court found that Rule 25(19) did not apply, the court acknowledged that even if it had, they would have dismissed the motion based on the factors set out in Barranoch v Abitol.
CONCLUSION:
The court dismissed the Respondent Husband’s motion to stay or set aside the orders of Justice Juginovic and Justice Fowler Byrne. The Respondent shall be granted access to the matrimonial home to retrieve any necessary person items. The Applicant shall itemize and photograph remaining objects of value and provide a list of contents to the Respondent. Additionally, the parties shall attend a Case Conference before a Dispute Resolution Officer.
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Categories: Divorce, Matrimonial Home, Substituted Service, Eviction