Mother Makes Case for Court to Drop Default Order


We’ve blogged in the past about the importance of responding to court orders and requests for documentation when directed by the courts. A failure to comply with a court order can lead to serious consequences, and a failure to follow the processes required by the court can mean that a trial could be held without the unresponsive party present. However, as we often discuss in our blogs, the law is full of nuances, and as a recent decision from the Ontario Superior Court of Justice in the case of Ostapyk v. Ostapyk, 2022 demonstrates, there are circumstances when a court order made due to the lack of involvement from one party could be set aside.

Mental Health Crisis Leads to Mother Moving Across the Country

The parties involved in the dispute were married for 11 years before they separated in 2019. While they were married they had three children, who were aged 10, 8, and 7 at the time of the hearing. Following the separation, the mother experienced what the court described as a serious mental health crisis. This led her to leave Ottawa, where the parties had lived, in order to move to British Columbia where her parents live. The mother has not had contact with the children since June 2020.

Despite not having contact with the children, the mother tried without success to reach a settlement with the father. This led her to no longer work with her lawyer. Later that year, in December, the father started the proceedings which led the parties before the court.

Father seeks summary judgment

Following the breakdown of settlement talks with the mother, the father began to pursue child support, exclusive possession of the marital home, and an unequal division of net family property. Once the application was submitted to the court, the mother did not reply with her answer to the requests within the time allowed. On February 4, 2021, the father asked the court to note the mother in default and proceed with an uncontested trial.

Around this time, the mother contacted the court with questions about how to take part in the matter. The father’s lawyer told the mother they would withdraw their request for an uncontested trial if she provided her answer to the application by February 26. This deadline came and went without a reply, and the court found the mother in default, allowing the father to pursue an uncontested trial.

Mother seeks another opportunity to participate

The mother told the court that she had emailed on February 19 with some questions, but did not receive a reply. She also began to work with a new lawyer and asked the court to revoke its decision to find her in default.

The court stated that the Family Law Rules do provide courts with the opportunity to set aside an order for a number of reasons, including when an order “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.”

In turning to what it takes for a reason to be “satisfactory” to the court, a number of factors can be considered, including:

a) Whether the motion was brought promptly after the respondent learned of the default judgment;

b)   Whether there is a plausible excuse or explanation for the defendant’s default in complying with the rules;

c)   Whether the facts establish that the respondent has an arguable defence on the merits;

d)   The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

e)   The effect of any order the court might make on the overall integrity of the administration of justice.

The Court Applies Factors to Mother’s Situation

In looking at whether the motion was brought promptly after learning of the default judgment, the court stated it took four months for the mother to act. However, the court found there was a plausible excuse for her default, stating that she lived in a different province and did not have a lawyer until she was able to obtain one through Legal Aid Ontario. This is all in addition to her significant mental health issues.

In turning to the third factor, the court did not receive much detail about the mother’s defence but stated it should use the utmost caution before striking a pleading as it relates to parenting time. The court agreed with the mother that it would be in the best interests of the children to allow her to make her case.

The second last factor considered was whether the father would be subject to prejudice if the default order was dismissed. The court was sympathetic to the father, who had spent significant sums of money to date in addition to time and energy. With that said, it was also clear that the mother would be subject to prejudice if not able to participate. The court sided with the mother on this factor.

The last consideration was to do with whether the order has an effect on the overall integrity to the administration of justice. The court found the mother had made attempts to participate in the matter, even if done so slowly. The court found the integrity of justice favours setting aside the order and allowing her to participate.

After going through the factors, the court dismissed the order that found the mother in default.

Johnson Miller Family Lawyers in Windsor Offers a Full Range of Family Law Services

A divorce or separation can be a very difficult time for all involved, with many decisions that have to be made, including those related to child support, spousal support, and the division of property. That’s why the family law lawyers at Johnson Miller Family Lawyers represent clients through a full range of family law issues. To see how we can help you today, please reach us online or by phone at 519-973-1500.


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