I am often approached by clients who seek to set aside a default order. A default order is a court order that was made without a defence or appearance in court by one of the parties. Changing or setting aside an order made in default means to alter or invalidate the order after it was made.
Justice Spence of the Ontario Court of Justice recently dealt with this issue in Naseem v. Saddiqui, 2018 ONCJ 141, the facts of which are as follows:
- Mother commenced her Application and properly served her pleadings upon father.
- Father did not serve or file his reply materials.
- A first appearance occurred. Father appeared and mother agreed to allow him to serve and file his materials within 30 days.
- Father again failed to serve and file any materials.
- A second first appearance occurred at which time father provided mother with an Answer but no Financial Statement, supporting financial documents, or other required documentation.
- Father was noted in default.
- A default order was made dealing with, among other things, custody and financial issues.
- Father then moved to set aside the default order.
Justice Spence analyzed Rule 25 of the Family Law Rules and dismissed the father’s motion with costs.
Rule 25 allows the court, on motion, to “change” an order in a variety of circumstances. It does not specifically empower a court to set aside an order, but the Ontario Court of Appeal has interpreted the rule as allowing a court to do so.
Fundamentally, the question on a rule 25 analysis is: what must be done to do justice as between the parties?
The leading authority is Hoang v. Schom, 2010 ONSC 2300. There, the court elucidated the following test:
- The application to set aside a default order should be made as soon as possible after the order comes to the knowledge of the moving party. The court must be attuned to whether setting aside the order will cause irreparable injury to any party.
- The moving party must provide an affidavit explaining the circumstances in which default occurred as well as providing a meritorious defence to the issues captured in the default order.
- The affidavit must do more than explain why there was a delay. It must also set out the nature of the defence and a statement of fact that allows the court to determine whether there is a triable issue.
The Ontario Court of Appeal found, in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd, that the affidavit must sufficiently fleshed out to support a motion to set aside a default order.
The father’s motion failed not because of delay, but because his affidavit failed to disclose any meritorious defence. For instance, he did not provide a financial statement, making it impossible to determine his position on financial issues. He also had complaints about custody but his affidavit was almost completely silent on that issue.
The takeaway from Naseem is to be punctual with filing and service deadlines to avoid unwanted consequences.