The Court of Appeal in Gray v. Gray 2017 ONCA 100 at paras. 26-31 in the course of holding that Rule 25(19) of the Family Law Rules encompassed the setting aside of an order, opted for a broad interpretation of this provision. Part of the reason was the unique challenges of litigation involving a family. The Rules are to “provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues”: para. 31, quoting with approval from Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11.
Although there must, consistent with this philosophy, be some flexibility incorporated into application of the Rules, ss. e cannot be stretched to include what happened in this instance.
Several judges have seized upon the characterization of the breadth of Rule 25(19) in Gray in order to read in a residual power additional to the five criteria set out in the provision. In establishing this residual power, the case law has drawn upon the law with respect to setting aside a default judgment in the civil context: see Gray v. Gray, 2017 ONSC 5028 at paras.; E.S.R. v. R.S.C., 2019 ONCJ 381 at paras. 62-70; Benarroch v. Abitbol et al, 2018 ONSC 5964 at paras. 28-31.
These cases have relied on the leading case for setting aside a default judgment in Ontario, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194. In her oral submissions, counsel for the Applicant made reference to the pertinent factors for setting aside a default judgment at paras. 48-49 of Justice Gillese’s reasons in that case,
(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; and
(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.
There factors are cumulative and must be examined together in order to determine whether a case for setting aside has been established. The Mountain View factors, in my view, incline strongly away from the relief sought by the Respondent.”