“Rule 10(1) of the Family Law Rules, O. Reg. 114/99, provides for thirty days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
Rule 1(8.4) reads:
(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
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- The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
- The party is not entitled to participate in the case in any way.
- The court may deal with the case in the party’s absence.
- A date may be set for an uncontested trial of the case.
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An “Uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
Rule 23(22) confirms that affidavit evidence may be used at an uncontested trial unless the court directs that oral evidence must be given.
It is important to note that the mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.”