“The respondent, Mr. Waite, moves under the Family Law Rules, O.Reg. 114/99 as am, rule 25(19) to set aside provisions of a Final Order dated July 4, 2019 made following an uncontested trial. The basis of his motion is inadequate notice, fraud and mistakes in the information provided to the court by Ms. Telford.
FLRs r 25(19) provides the following:
(19) 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. O. Reg. 151/08, s. 6.
Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 is often referred to by courts determining a motion under r 25(19) for the five factors it set out in the civil context:
[48] The court must consider the following three factors:
(a) whether the motion was brought promptly after the defendant learned of the default judgment;
(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and
(c) whether the facts establish that the defendant has an arguable defence on the merits.
[49] To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. 2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:
(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.
Not all of these factors need be met but at least one must be engaged before the court exercises its broad discretion under rule 25(19): Gajic v. Lazeo, 2019 ONSC 4690. Other factors may also be considered including deficiencies in full and frank disclosure during the default proceeding and deficiencies in service that could impact the outcome of the trial: Irons v. Irons, 2020 ONSC 1471.”