“The payor also however, relies on Rule 19.08 of the Rules of Civil Procedure. That rule provides that the court may set aside a default order or vary it on terms as are just. The caselaw establishes that the court may rely on Rule 19.08 to set aside a warrant of committal (see 122164 Canada Ltd. v. C.M. Takacs Holding Corp. 2015 ONSC 3007 (Ont. S.C.J.) ). The factors that the court should consider in determining whether to grant such relief are as follows:
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- The ultimate issue on such a motion is whether it is in the interests of justice to set aside the default judgment. In deciding this issue, the judge should have regard for:
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a) The potential prejudice to the moving party if the motion is dismissed;
b) The potential prejudice to the respondent should the motion be allowed; and
c) The effect of any order the motion judge may make on the overall integrity of the administration of justice (see Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 41 C.P.C. (6th) 316, 2007 ONCA 333(Ont. C.A.).
2. In assessing the issue of prejudice in the context of a motion to set aside a warrant of committal made in a Family Responsibility Office enforcement proceeding, the court should also consider any prejudice to the recipient from either granting or refusing the order (Mariani, at para. 67).
3. In carrying out the analysis required on such a motion, the court should be guided by the following considerations:
a) Whether the moving party moved promptly after learning of the order to have it set aside;
b) Whether the moving party has provided an adequate explanation for the default; and
c) Whether the moving party has an arguable case on the merits in the Family Responsibility Office default proceeding itself.
These three considerations are guidelines only for the court’s exercise of its discretion, and are not rigid preconditions to the exercise of the court’s discretion (Peterbilt ; Mariani ; Ontario (Director of Family Responsibility) v. Dick, 2013 ONCJ 198 (Ont. C.J.) ).
4. The exercise of the court’s discretion on a motion to set aside a warrant of committal issued under the Family Responsibility and Support Arrears Enforcement Act, 1996. S.O. 1996, C.31, as am., should also be guided by the purposes of incarceration in this context. The caselaw establishes that imprisonment in the context of support enforcement is meant as a means of enforcement, and not as a means of punishment. The enforcement rationale for imprisonment upon non-payment of support only makes sense if the payor has the ability to pay the support and fails to do so (Mariani, para. 56).”
Director of Family Responsibility v. Lucy, 2017 ONSC 6497 (CanLII) at 7