“I defaulted, now what?”: The Confusion Regarding Challenging Family Law Default Orders Continues
The Hilton case is yet another example of the continued confusion in the law with respect to how a party challenges an order made when in “default”. In other words, when one party has not filed an answer, had their pleadings struck, or otherwise did not participate, but wishes to get back into the case, the law remains somewhat unclear.
The basic facts in Hilton are that Mr. Hilton did not file an Answer, was noted in default, but was given additional time to respond. He did not do so and the court confirmed the noting in default and decided the matter on an uncontested basis. Mr. Hilton brought a 14B motion to set aside the default order, but this was dismissed on the basis that the Default Order needed to be appealed. Mr. Hilton then appealed that Order.
The Court of Appeal seemed to have settled the issue of process with respect to defaults in Gray v Gray (a case in which I was involved), overturning earlier jurisprudence from the Divisional Court that said resort to the Rules of Civil Procedure was necessary to set aside an Order. In Gray, the Court of Appeal said that the proper first route for challenging the Order in that case, namely, a default judgment made because the Father did not attend at trial, was a motion to set aside.
The Hilton decision would be consistent with Gray were it not for the statement from the court that, “…some of the orders the appellant seeks to set aside were made on the basis of his own failure to provide disclosure. Nicholson J. was correct that an appeal would be required to set aside those orders.”
However, the Court stated, IF the allegations were that there were misrepresentations by Mrs. Hilton, then the proper route would not be an appeal, but a motion to set aside the Order.
This conclusion seems questionable. The Court of Appeal is suggesting that different terms of the same Order may be subject to different mechanisms of challenge depending on what seems to be an arbitrary criteria. This will create undue confusion and a multiplicity of procedures.
Respectfully, the reason why a person is in default should not affect the route to setting the order aside. Misrepresentations by the non-defaulting party would just more strongly militate in favour of setting aside those portions of an Order obtained by the misrepresentation compared to an Order where no misrepresentations were made.
This entire subject could easily be rectified by the Family Law Rules changing to provide that any order made in a default setting may be set aside based on the test under Rule 19.08 of the Rules of Civil Procedure. This test provides the clearest, most consistent, and fairest mechanism for the court to decide when to set aside any default order.
By removing the concept of “noting in default”, the Family Law Rules were supposed to be easier to understand and navigate; the Hilton decision shows more clarity is needed.
This commentary is cross-posted to: https://canliiconnects.org/en/commentaries/73227