“Because it is a family law case, I will begin with Family Law Rule 25(19). It reads as follows:
(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.
The Ontario Court of Appeal has held that the authority to change an order includes the authority to set it aside: Gray v. Gray, 2017 ONCA 100 paragraphs 26 and 31.
I find that the present case does not fit within the situations listed in Rule 25(19)(a-e). However, there is authority for applying rule 19.08 of the Rules of Civil Procedure.
In Bompas v. Henry 2018 ONSC 7718 paragraph 15 the court stated:
[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.
This was repeated in Ostapyk v. Ostapyk, 2022 ONSC 400 paragraph 13.
Rule 19.08(1) reads as follows:
A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.
Rule 19.01(1) shows that this applies both where a defendant has failed to deliver statement of defence and where a statement of defence has been struck out, as here.”