“The court has an inherent jurisdiction to backdate an order, recognized by the doctrine of nunc pro tunc, Latin for “now for then”. Whether a court exercises this jurisdiction is based on fairness and the interests of justice. Typically, nunc pro tunc orders are used to relieve prejudice that results to the party seeking the order from delays that occur that are beyond the control of the party. They are most often seen in the context of backdating orders so that a limitation period does not unfairly bar a claim if the party has acted prior to the expiration of the limitation period but been unable to secure an order in time due to no fault of its own.
In Hogarth v. Hogarth, 1945 CanLII 396 (ONSC), [1945] O.W.N. 448, Kelly J., at p.449 stated as follows:
There is inherent jurisdiction in the Court to make orders nunc pro tunc to validate proceedings which have been carried out and have been found ineffective by reason of some slip or oversight having been made in the conduct of such proceedings, and to ensure against some injustice resulting therefrom.
On my review of cases in which nunc pro tunc orders have been granted, the doctrine has been relied upon primarily to remedy procedural defects. I am unaware of any cases in which the doctrine has been used to backdate an order for custody, as requested in this situation. As noted, counsel for the applicants did not provide me with any cases on this issue.”