“Rule 25(19) of the Family Law Rules O. Reg. 114/99 reads 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. O. Reg. 151/08, s. 6.
The definition of “change” is broad and provides the judge with the jurisdiction to set aside an order made by a judge of the same court. This broad interpretation is consistent with Rule 2 of the Family Law Rules that requires the court to deal with cases justly and recognizes that family law proceedings are different than other judicial proceedings: Gray v. Gray, 2017 ONCA 100.
It is the father’s onus to demonstrate on the balance of probabilities that the mother committed fraud on the court at the uncontested trial. The fraudulent acts must be material and go to the foundation of the case: Dodge v. Dodge, 2007 CanLII 80075 (ON SC), 2007 CarswellOnt 6477 at para. 57.
The Court of Appeal listed five factors the court should consider in determining whether to set aside a default judgment in Mountain View Farms, Ltd. v. McQueen, 2014 ONCA 194, 119 O.R. (3d) 561 as follows:
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- Whether the motion was brought promptly after the defendant learned of the default judgment
- Whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules
- Whether the facts establish that the defendant has an arguable defence on the merits
- The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed
- The effect of any order the motion judge may make on the overall integrity of the administration of justice
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“These factors are not to be treated as rigid rules”: Mountain, at para 50. The court must determine whether it is just to relieve the father from the consequences of his default based on the circumstances in this case.”