Court File and Parties

Court File No.: FS-24-104 Date: 2025/12/31 Ontario Superior Court of Justice

Between:

RYAN OTTO HIEMSTRA, Applicant

-- and --

TAMI SUTHERLAND, Respondent

S. Sikora, for the Applicant

C. Leung and M. Meglio, for the Respondent

Heard: August 1, 2025, with written submissions received on September 2 and September 17, 2025

Reasons for Decision on Motion

Ellies J.

Overview

[1] The respondent moves under r. 25(19) of the Family Law Rules, O. Reg. 114/99 (the "FLRs"), to set aside an order noting her in default for failing to serve and file an answer to an application relating to the parties' jointly-owned home.

[2] For the reasons that follow, I have concluded that the court has no power to set the noting of default aside. As I will explain, even if I am wrong, I would not set aside the order in this case. The respondent's motion must, therefore, be dismissed.

Background

[3] According to the applicant, the parties began living in a common-law relationship in 2009. In 2021, they purchased a home together on Eagle Lake Road, in South River. They separated in October 2023. The respondent remained in the home following the separation.

[4] On July 15, 2024, the applicant commenced an application in which he sought support and an order for the sale of the home. The application was served on the respondent on July 20, 2025, according to the applicant, or on July 24, 2024, according to the respondent. The respondent failed to serve and file any responding materials.

[5] The matter proceeded to a case conference before Nadeau J. on January 22, 2025. Justice Nadeau's endorsement of that date indicates that the respondent advised him she intended to retain a particular lawyer using a Legal Aid certificate as soon as possible. At the conference, the parties agreed to share the cost of an appraisal of the South River property.

[6] It appears that there was a possibility of a private sale of the property at that time because Nadeau J. ordered, on consent, that it be listed for sale (publicly) within the following 60 days if the parties could not agree on a private sale. He also granted the applicant permission to bring a motion to sell the property and adjourned the matter to a settlement conference "if necessary". A formal order incorporating the terms of the January 22, 2025, case conference endorsement was taken out on February 2, 2025.

[7] By April 22, 2025, the respondent had still not served any responding materials, nor had she advised the applicant regarding the possibility of a private sale. As a result, the applicant moved to have the respondent noted in default and for an order for the immediate sale of the South River property at a price of $500,000, among other things. The notice of motion and supporting affidavit were served on the respondent via email that same day. Once again, the respondent served and filed nothing in reply.

[8] The applicant's motion proceeded before Nadeau J. on May 2, 2025. The respondent was in attendance that day. According to the applicant, the respondent advised the court that she had her responding materials ready to be served immediately. It would appear that Nadeau J. refused to accept the respondent's representations this time around. His endorsement of that date was brief. It reads:

Motion heard, and I am satisfied to make the orders as endorsed on the draft order, which was produced to Tami Sutherland in court.

[9] A formal order for the relief sought, including a clause that the respondent "shall be noted in default" was signed by Nadeau J. that day.

[10] About one month later, on June 5, 2025, the respondent served and filed a Form 14B motion seeking to set aside Nadeau J.'s May 2 order, granting her 30 days in which to file her answer and financial statement, and seeking $1,000 in costs. The motion was first reviewed in chambers by Wilcox J. on June 6, 2025. He held that the motion had been put before him prematurely because service on the applicant had only been effected the day before. He also held that the motion should be reviewed by the judge who made the order, namely Nadeau J.

[11] I reviewed the respondent's motion on June 17, 2025, also in chambers. In my endorsement of that date, I indicated my agreement that it would be best if the motion could be put before Nadeau J. However, as I noted, Nadeau J. was not sitting again until September 2025. Because the motion was contested and because Nadeau J. had no more power to vary the May 2 order than any other judge, I ordered that it be put to the short motions list for July 4, 2025: see Montague v. Bank of Nova Scotia (2004), 69 O.R. (3d) 93 (C.A.), at para. 34; Chitsabesan v Yuhendran, 2016 ONCA 105, at para. 11.

[12] For some reason not revealed by the record, the motion did not proceed on July 4. Instead, it proceeded before me on August 1, 2025. During the hearing of the motion, and in my endorsement afterwards, I expressed concern about my jurisdiction to set aside the noting in default. Therefore, I requested written submissions on that issue. In the meanwhile, I ordered that the proceeds from the sale of the home be held in trust pending further order of the court or written agreement of the parties.

Positions of the Parties

[13] The respondent relies on r. 25(19) of the FLRs, which permits a court to change an order in certain circumstances, including when it has been made without adequate notice. The respondent submits that, although she was physically present during the hearing of the motion, she was not effectively present because she had not been able to retain counsel or file any responding materials.

[14] In the alternative, the respondent asks me to resort to r. 1(7) of the FLRs, which provides that the court may adopt a procedure analogous to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "RCP"), when the FLRs do not adequately provide for a matter. The respondent asks me to adopt a procedure akin to that set out in r. 19.03 of the RCP, which allows a court to set aside a noting of default "on such terms as are just". On behalf of the respondent, counsel argues that it would be unjust not to set aside the noting of default in this case because the respondent has a valid claim to the entire South River home.

[15] The applicant resists the motion. He submits that r. 25(19) is not available to the respondent in the circumstances of this case. In the alternative, he submits that the respondent has failed to establish a basis for the court to exercise its discretion in the respondent's favour under the rule.

Issues

[16] There are three potential issues to resolve in this motion:

(1) Does the court have jurisdiction to set aside the noting in default under r. 25(19) of the FLRs?

(2) If not, does the court have jurisdiction to set aside the noting in default under r. 1(7) of the FLRs and r. 19.03 of the RCP?

(3) If the answer to either question is "yes", should the court set aside the order noting the respondent in default?

Analysis

Does the court have jurisdiction to set aside the noting in default under r. 25(19)(e) of the FLRs?

[17] The respondent submits that the May 2 order noting her in default can be set aside under r. 25(19), which reads:

(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.

[18] The respondent submits, correctly, that r. 25(19) has been interpreted to allow a court not only to change an order, but also to set an order aside: Gray v. Gray, 2017 ONCA 100, at para. 26. She submits that the order in this case should be set aside under r. 25(19)(e). She argues that even though she had notice of the motion and was present at the hearing of the motion on May 2, 2025, she was not "present" in the sense contemplated by the rule because she had not yet managed to retain counsel and had not, as a result, filed any responding materials.

[19] I cannot accept this argument. It is precluded not only by wording of the rule, but also by binding judicial authority.

[20] The words in r. 25(19)(e) are unambiguous. The subrule specifically addresses two situations in which a party might not be present: (1) because the notice given to the party was inadequate, or (2) because the affected party was unable to attend for some satisfactory reason. In either case, the subrule speaks to the absence of a person, not of a person's materials.

[21] Each clause in r. 25(19) has one thing in common: namely, that the order sought to be changed was factually or procedurally deficient in some way. In each of the various deficiencies mentioned in the subrule, the party seeking to change the order is either blameless or not entirely at fault. That is not so in this case, as I will explain below.

[22] The respondent relies heavily on the purpose of the FLRs. Rule 2(2) of the FLRs provides that the primary objective of the rules is to enable the court to deal with cases justly. Rule 2(4) requires the court to interpret the FLRs in a way that promotes the primary objective. However, as r. 2(3)(a) of the FLRs makes clear, dealing justly with a case includes making sure that it is fair to all parties. In my view, giving r. 25(19)(e) the interpretation urged by the respondent would not be fair to the applicant, who must be able to rely at some point on finality in the litigation process.

[23] In any event, the respondent's argument runs afoul of binding jurisprudence. In Hawkins v. Huige, 2012 ONCA 219, the Court of Appeal held that r. 25(19) could not be invoked where the party moving to change the order in question had direct knowledge of the motion at which the order was made, even where there may have been some technical defect in service. In my view, the decision in Hawkins precludes the interpretation of r. 25(19)(e) urged upon me by the respondent, where she not only had had proper notice, but actually attended the motion in response to it.

[24] For these reasons, I do not believe that I have jurisdiction under r. 25(19) to set aside the noting in default.

Does the court have jurisdiction to set aside the noting in default under r. 1(7) of the FLRs and r. 19.03 of the RCP?

[25] The respondent submits, in the alternative, that I have jurisdiction to set aside the May 2 order noting her in default by a procedure analogous to r. 19 of the RCP. Rule 19 sets out a procedure whereby a party in default of delivering a statement of defence within the prescribed time limit may be noted in default by the registrar of the court upon the request of the plaintiff. Under r. 19.03 of the RCP, the noting of default may be set aside by the court "on such terms as are just".

[26] The respondent submits that, if the court is not able to set the May 2 order noting her in default aside under r. 25(19) in the circumstances of this case, then there is a gap in the FLRs. She submits that, pursuant to r. 1(7) of the FLRs, that gap may be filled by adopting a procedure akin to the procedure under r. 19.03 of the RCP. She argues that, because the noting in default that was made on May 2 was administrative in nature, it should be set aside in the same way it could be set aside under r. 19. Again, I am unable to agree.

[27] There is no administrative procedure under the FLRs for noting a party in default akin to that in r. 19 of RCP: Benarroch v. Abitbol, 2018 ONSC 5964, at para. 28. Instead, where there is no response to an application within the time limit prescribed by the FLRs, the applicant may request that the clerk of the court schedule a case conference or set a date for an uncontested trial under r. 17(2). It would appear that the applicant chose the former course of action in this case.

[28] Rule 17(8) of the FLRs lists the orders that a judge can make at a case conference. Noting a party in default is not one of them. Nor does there appear to be any other FLR specifically providing for the noting in default of an unresponsive party. The only authority I can find for the order made by Nadeau J. on May 2 is r. 1(8.1). Rule 1(8.1) makes r. 1(8) applicable where a person fails to follow the FLRs. Rule 1(8) is the general sanction rule applicable where a party fails to follow a court order (or, by virtue of r. 1(8.1), a rule). Rule 1(8) provides that a court may make "any order that it considers necessary for a just determination of the matter" and lists specific examples of orders that can be made. Again, noting a party in default is not one of the orders listed. However, the list does include two orders that I believe are relevant to this case.

[29] Rule 1(8)(c) allows a court to strike out any document filed by a party, including an answer. Rule 1(8)(d) allows a court to order that some or all of a document that was required to be filed by a party, but was not filed, cannot be used in the case. Based on these examples, and the broad wording in the general part of the rule, I believe that r. 1(8) is broad enough to permit a court to order that a party be noted in default. If I am correct in my interpretation of the rule, it cannot be said, as the respondent contends, that the May 2 order noting her in default was "administrative" in nature. It most certainly was not. Indeed, it strikes me that Nadeau J. was being asked to do much the same as I am being asked to do, namely, to give the respondent another chance to respond. His act of refusing to do so was no more of an administrative decision than is mine.

[30] For these reasons, even if there is a gap in the FLRs, I would not fill it by adopting a procedure akin to r. 19.03 of the RCP in this case.

If the answer to either question is "yes", should the court set aside the noting in default?

[31] Strictly speaking, I do not need to answer this question because the answer to both earlier questions was "no". However, even if I am wrong in my conclusion that the court has no power to set aside the May 2 order noting the respondent in default, I would not do so in the circumstances of this case.

[32] In circumstances where r. 25(19) does permit the court to set an order aside due to the absence of a party, the courts have developed a non-exhaustive list of factors to consider: Benarroch v. Abitbol, 2018 ONSC 5964, at para. 31; Zia v. Ahmad, 2021 ONCA 495, at para. 4; Phelan v. Givlin, 2023 ONSC 3917, at para. 6. These factors include:

(a) whether the motion was brought promptly after learning of the order;

(b) whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the FLRs;

(c) whether the moving party has established an arguable case on the merits;

(d) whether the moving party is acting in good faith and with "clean hands";

(e) the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and

(f) whether, in the final analysis, the interests of justice favour setting aside the order.

[33] I accept that the respondent brought her motion reasonably promptly after learning of the May 2 order, that she has established an arguable case on the merits, and that she will suffer prejudice if the motion to set aside the order is dismissed. However, I am not satisfied that the respondent has provided an adequate explanation for her failure to respond to both the application itself and the motion brought within it. Nor am I satisfied that the interests of justice favour setting the order aside.

[34] As the applicant points out, the respondent had ample opportunity and was actively encouraged to respond to the application, as follows:

(1) when the application was served personally on the respondent in July 2024, it was accompanied by a letter from the applicant's lawyer, encouraging the respondent to obtain legal advice;

(2) a similar letter was sent when the respondent was served on August 6, 2024, with a conference notice for the case conference on January 22, 2025;

(3) on January 9, 2025, a staff member from the law firm of counsel for the applicant spoke to the respondent about the court proceeding and later sent her information via email about how to access the services of duty counsel and the Family Law Information Centre ("FLIC") program;

(4) as indicated in the endorsement of Nadeau J. of that date, the need to file an answer was discussed at the case conference on January 22, 2025, as was the possibility of a motion being brought by the applicant to sell the home;

(5) more than three months passed between the date of the case conference and the date the applicant's notice of motion was served on April 22, 2025; and

(6) the respondent had a further 10 days between the date she was served with the applicant's notice of motion and the date it was first returnable on May 2, 2025.

[35] The respondent now acknowledges that she failed to comply with the FLRs and that it was her duty to do so. She deposes that she immediately tried to retain counsel after being served with the application in July 2024, but that she was unable to do so because "most" (not all) counsel that she contacted had either already met with the applicant, required a large retainer, or did not have the capacity to take on the respondent as a client. The respondent also admits she applied for a Legal Aid certificate in early 2025, but provides no evidence as to whether she succeeded at obtaining one or, if she did, why she did not retain counsel after one lawyer apparently refused to take her case in February 2025.

[36] I am not persuaded on this evidence that the respondent's failure to respond has been adequately explained. I am also not persuaded, on the facts in this case, that it would be in the interests of justice to condone such a complete and utter disregard for the FLRs by setting aside the May 2 order noting her in default, even if I could.

[37] Undoubtedly, the respondent will suffer prejudice as a result of the May 2 order, but it is prejudice arising entirely from her own conduct. That prejudice has been mitigated by my August 1 order that the funds from the sale of the home be held in trust pending further order of the court or the parties' agreement. It may be mitigated further if the respondent moves for an order under r. 1(8.4), allowing her to continue to participate in some way in the proceedings.

Conclusion

[38] There is no authority under r. 25(19) to set aside the May 2 noting in default because none of the preconditions to exercising that authority exist in this case. Nor would it be appropriate to adopt a procedure like the one provided for in r. 19.03 of the RCP in this case, even if it could be said that there was a gap in the FLRs. The May 2 order noting the respondent in default was not an administrative act but was, instead, a judicial decision made following a hearing at which the respondent was present and was allowed to participate.

[39] Even if the court had authority to set the order aside, I would not do so in the circumstances of this case, involving as they do an unexplained, and therefore unreasonable, failure to comply with the FLRs.

Costs

[40] The issue of costs was not canvassed during the hearing of the motion. The parties are urged to agree on the issue. However, if necessary, written submissions of no more than three typewritten pages, exclusive of attachments, may be made as follows:

(1) by the applicant, within 30 days of the release of these reasons,

(2) by the respondent, within 60 days of the release of these reasons.

M.G. Ellies J.

Released: December 31, 2025