We’ve blogged recently about the importance of following court orders and the consequences that can arise out of failing to do so. When going through a separation or divorce, the courts may request certain financial documents in order to determine a party’s income, which is then used to determine how much child support or spousal support they will be responsible to pay. In the event that the party who owes information does not provide it to the court, they may be noted in default and the case could proceed without their involvement. In an interesting decision that was recently issued by the Court of Appeal for Ontario, a husband asked the court to reverse his default status because of the wife’s alleged misrepresentations.
Husband fails to comply with order
The parties involved began their divorce proceedings in September 2018. The first case conference was held in March 2019, and by that time the husband had not filed an answer for the financial information requested of him. The husband was found in default and was ordered to deliver documentation within 30 days. The husband did not comply with this order, and as a result, a planned uncontested trial was scheduled for September 23, 2019.
The trial was ultimately held on November 22, 2019. The outcome of the trial included the granting of possession of the matrimonial home to the wife, as well as the division of property and a temporary order granting the wife spousal support. A second trial was planned for the ultimate setting of child and spousal support.
Husband contests order
In February 2020 the husband brought a motion seeking to have all orders to date set aside as well as the opportunity to serve and file the information he was asked to provide.
The father’s request was based on his assertion that the wife had committed a fraud on the court “through misrepresentations and material omissions in her evidence at the hearing of the uncontested trial.” In short, he told the court that the mother knew things that were not disclosed and had provided information that she knew was not true. At the original trial to deal with the request, the husband’s request was set aside because the father had not complied with any previous order. It was determined that an appeal would be needed to set aside any of those orders.
Court allows allegations to be heard in future
The court held that while the husband had failed to comply with previous orders, and was the “author of much of his misfortune,” the allegations about the wife’s misrepresentations and material omissions must still be heard by the courts.
While the court did not make a decision on the merits of the husband’s allegations, it did rule that a hearing would be scheduled. However, the court noted that the extent of the husband’s participatory rights at that trial would be left for the trial judge to determine, including whether he could give any reliable or credible evidence.
For questions that only a family law lawyer can answer, contact the experienced family law team at Howie Johnson Barristers & Solicitors at 519.973.1500 or contact us online. We have been a fixture of the family law community of Windsor and Essex County for over 25 years, and so understandably, many prospective clients come to the firm through referrals from current or past clients, and also through referrals from lawyers, accountants, medical professionals and marriage counselors.