“Rule 25(19)(e) of the FLR provides that: “the court may, on motion, change an order that…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”.
Prior to the Court of Appeal’s decision in Gray the jurisprudence in the family context was unclear as to whether Rule 25(19)(e) applied to motions to set aside a final order made on an uncontested basis or whether it was necessary to resort to the Rules of Civil Procedure, RRO 1990, Reg 194 (“RCP”).
After determining that Rule 25(19)(e) should be interpreted broadly to encompass motions to set aside, the Court of Appeal in Gray went on to hold that:
[29] Finally, and most importantly, this interpretation of r. 25(19)(e) promotes the underlying philosophy, scheme, and purpose of the Family Law Rules. As Benotto J.A. stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321 (Ont. C.A.), at para. 11:
The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules 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. They embody a philosophy peculiar to a lawsuit that involves a family.
[30] Rule 2(2) states that the “primary objective of these rules is to enable the court to deal with cases justly.” While r. 1(7) permits a court to refer by analogy to the Rules of Civil Procedure where the family rules do not adequately cover a matter, such instances will be “rare”: Frick, at para. 12. The Family Law Rules are intended to be a complete procedural code.
[31] An interpretation of “change” as including “set aside” best promotes the efficient and just resolution of family law matters. On a motion under r. 25(19)(e), the court may decide that the most efficient remedy is to vary the order at issue without setting it aside. However, the court may instead determine that the order needs be set aside entirely; a variation of the order at issue would not produce a just result. For example, a new hearing on the merits may be required.
[32] There is no need to further consider the provisions and language from the Rules of Civil Procedure in this case, such as whether the trial judge’s order is analogous to a “default order”. An analysis of such terms would only confuse the scheme and narrative that are unique to family law litigation. Rule 25(19)(e) adequately covers the matter in this case.