“It is settled law that rule 25(19) of the Family Law Rules, O. Reg 114/99 includes the authority for the court to set aside an order: See Gray v. Gray, 2017 ONCA 100. The rule provides as follows:
The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) 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.
Subsection (e) applies here. Was the respondent unable to be present on February 17, 2021 for a reason satisfactory to the court? The inquiry, however, does not end with the rule. As stated by the court in Bompas v. Henry, 2018 ONSC 7718, at para. 15,
It is my view that the inquiry should not end with r. 25(19)(e). Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly. In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure. That provides the court with the authority to set aside a default judgment on such terms as are “just”. The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration. The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief. The factors are:
a) Whether the motion was brought promptly after the respondent learned of the default judgment;
b) Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules;
c) Whether the facts establish that the respondent 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. [Footnotes omitted.]”