C. Leung

The respondent in a family law application moved under r. 25(19) of the Family Law Rules to set aside an order noting her in default for failing to serve and file an answer.

The court held it had no jurisdiction to set aside the noting of default under r. 25(19) because the respondent had proper notice and was physically present at the motion.

The court also declined to adopt a procedure analogous to r. 19.03 of the Rules of Civil Procedure, finding no gap in the FLRs warranted filling.

Even if jurisdiction existed, the court would not have exercised its discretion in the respondent's favour given her unexplained and unreasonable failure to comply with the rules over nearly a year.

The applicant father brought an urgent motion for a non-removal order, alleging the respondent mother intended to abscond to Jamaica with their child.

The mother brought a cross-motion for interim child and spousal support, noting the father had withdrawn his support for her immigration application.

The court granted a non-removal order on consent, maintained the child's primary residence with the mother, and granted the father parenting time every other weekend.

Finding the father's reported income unreliable, the court imputed his income at $132,856.50 and ordered him to pay $1,169 per month in child support, $1,000 per month in interim spousal support, and retroactive daycare expenses.