Alex Sutton

The respondent in the original family law proceeding moved to set aside default orders made at an uncontested trial regarding child support, equalization, post-separation adjustments, and transfer of the matrimonial home.

The moving party established that he never received notice of the proceeding because substituted service was effected to an email account he could no longer access.

Applying the factors from Zia v Ahmad and Mountain View Farms, the court found the moving party acted promptly, had an arguable defence on the merits regarding both the matrimonial home and imputed income for child support, acted in good faith, and would suffer greater prejudice if denied his day in court.

The motion was granted and the default orders were set aside.

The Court of Appeal for Ontario allowed both the appeal and cross-appeal, setting aside the case conference judge’s order in its entirety.

The court found that the case conference judge exceeded his authority under the Rules of Civil Procedure and failed to provide adequate reasons or an evidentiary record to support his decision regarding the existence and terms of a settlement.

The lack of intelligible reasons and evidentiary basis precluded meaningful appellate review.