M. Zalev

The payor brought a motion under Rule 25(19) of the Family Law Rules to set aside a Final Default Order that fixed his spousal support arrears at over $480,000 and ordered incarceration in the event of future default.

The payor argued he did not receive adequate notice of the remote default hearing and was unable to attend due to age and health concerns amid the COVID-19 pandemic.

The court applied the Mountain View Farms factors and found that the payor had received adequate notice, simply chose to ignore the proceeding, and failed to establish an arguable case on the merits regarding his inability to pay.

The motion was dismissed.

During an ongoing family law trial, the respondent sought production of a therapist’s clinical file after the applicant decided not to call the therapist as a witness despite earlier representations that he would testify.

The parties had also exchanged mutual undertakings to produce doctors’ files.

The court found that the respondent had relied on the applicant’s repeated statements that the therapist would testify and that the file would be produced.

Drawing on principles from R. v. Jolivet regarding fairness when litigation strategy changes mid‑trial, the court concluded that withholding the file would create unfairness.

The applicant was ordered to obtain and produce the therapist’s file so the respondent could determine whether to call the therapist as a witness.