“At common law, trial judges have a broad discretion to rectify a mistake on “outcome-determinative matters” in an order. See SS&C Technologies Canada Corp. v The Bank of New York Mellon Corporation, 2024 ONCA 675, at para 69.
After the order is entered, trial judges can only amend the order if “authorized by statute, to correct a drafting slip-up or error in expressing their manifest intention, or if the matter has not been heard on its merits”. See Canadian Broadcasting Corp. v Manitoba, 2021 SCC 33, at para 33.
The Family Law Rules expressly state that a court may change an order for fraud, mistake, or lack of notice. See Family Law Rules, r 25(19). The wording of the rule presumes that the order has been signed and entered. That said, rule shouldn’t be used to empower the court to “revisit, reopen and reargue a case” or allow the court to hear an appeal of its own decision. See NS v RM, 2020 ONSC 3359, at para 38.
Together, I read and understand the caselaw and rule 25(19) to mean as follows:
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- before the order is signed, the trial judge can rectify mistakes on outcome-determinative matters
- after the order is signed, any judge can change an order if there’s evidence of fraud, a mistake that undermines the order’s “manifest intention”, there was a lack of notice, or the court didn’t deal with an outcome determinative matter that was before the court”
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