“The motion to set aside the order was brought pursuant to rule 25(19)(e) of the Family Law Rules, which provides that the court may, on motion, change an order that:
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
The test for deciding a motion to set aside a default judgment is set out in Mountain View Farms v. McQueen, 2014 ONCA 194, at paras. 48-49. There are five factors as follows:
(a) whether the motion was brought promptly after the defendant learned of the default judgment;
(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules;
(c) whether the facts establish that the defendant has an arguable defence on the merits.
(d) 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
(e) the effect of any order the court might make on the overall integrity of the administration of justice.
These factors are not rigid rules. The court must consider the facts and circumstances of each case. The Court of Appeal held, at para. 51, that the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. The respondent need not show that the defence will inevitably succeed but must show that it has an air of reality.”