“Family Law Rule 14(19)(d) allows the court to change an order that “was made without notice” [emphasis added]. FLR 14(19)(e) allows the court to change an order “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” [emphasis added]. Which subrule is most applicable is debatable in this case because the respondent had notice of the proceeding, but not the hearing where the order was granted. Either way, the test to be applied in deciding the issue is settled. In similar circumstances, the Court of Appeal stated in Zia v. Ahmad, 2021 ONCA 495, at para. 4, that the court is to consider the following factors:
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 failure to respond to the proceeding in accordance with the Family Law Rules;
c. whether the moving party has established an arguable case on the merits;
d. whether the moving party is acting in good faith and with “clean hands”;
e. the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and,
f. whether, in the final analysis, the interests of justice favour setting aside the judgment.
This description of the test mirrors the applicable test in civil cases set out by the Court of Appeal in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 47 to 49. In that case, the Court of Appeal added, at para. 50, that these factors are not treated as rigid rules. The factors are not a series of hurdles for the responding party but rather factors to be weighed in the exercise of discretion: D’Alessio v. D’Alessio, 2010 ONSC 321, at para. 6; Lucreziano v Lucreziano, 2021 ONSC 4106, at para. 42.”