Setting Aside Orders in Family Court For various reasons, family law litigants may fail to participate in their court proceedings, placing them at risk of being “noted in default”. The court may then make “uncontested” orders in their absence, based on the evidence of the moving party only. It may come as a great surprise to learn that these orders are often detrimental to the absent litigants’ interests. As a result, they may seek to change or set aside these orders. Sometimes, litigants learn about these court orders for the first time when the Family Responsibility Office informs them of their significant support arrears. Until the Ontario Court of Appeal’s decision in Gray v Gray 2017 ONCA 100, there was confusion in Ontario regarding the appropriate route to remedy uncontested orders. One line of cases relied on section 25(19) of the Family Law Rules to set aside orders, which allows the court to “change” orders based on a list of factors, despite the rule making no explicit mention of “setting aside” an order. Another line of cases rejected this approach, instead relying on either the court’s inherent jurisdiction to set aside an order to prevent a miscarriage of justice, or rule 19.08 of the Rules of Civil Procedure, which provides the court with jurisdiction to set aside orders in ordinary civil matters. Gray v Gray settled this dispute and concluded that family law litigants may appropriately rely on section 25(19) of the Family Law Rules to set aside uncontested orders. The actual test to be applied on a motion to set aside an order appears to be unchanged from the previous jurisprudence, however. This test remains consistent with the primary objective of the Family Law Rules to deal with cases justly. To this end, the Ontario Court of Appeal in Mountain View Farms Ltd. v. McQueen 2014 ONCA 194 held that dealing with a claim to set aside an order justly requires a consideration of the following factors: Whether the motion was brought promptly after learning about the judgment; Whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; Whether the facts establish that the defendant has an arguable defence on the merits; 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 The effect of any order the court might make on the overall integrity of the administration of justice. If you believe you have grounds to set aside an order, it is important to speak with knowledgeable family counsel promptly, as any additional delay has the potential to cause significant prejudice to your case. Contact Mason Morningstar of Devry Smith Frank LLP for help determining your rights and obligations in this regard. mason.morningstar@devrylaw.ca or 416-446-3336 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawApril 16, 2019June 14, 2020
Canadian Courts and Mahr Agreements – Can My Mahr Agreement be enforced? We have discussed the topic of divorce in a previous blog post, however at Devry Smith Frank LLP, we are aware that typically, traditions vary in different cultures. In particular, the South Asian community. Family separation and divorce within the South Asian community is often seen as a taboo subject and notions of uncertainty as to whether a Mahr Agreement can actually be enforced, frequently arises. – Either promptly, at the time of the marriage or on a deferred basis, which allows for the wife to gain financial security in the event of unforeseen circumstances, such as the death of her husband or a separation. Occasionally, it is misperceived as a ‘bride price’ or ‘dowry’ which does not seem fitting, considering the agreement is not a prerequisite for marriage. Typically, it is a gift given to the bride from her husband when the stipulations of the contract of marriage is made. Over the years, there has been inconsistency in the rulings of Mahr agreements in Canadian courts. Nonetheless, some courts have deemed the contract to be one of a domestic nature and enforced it under the provisions of family law. As seen in Mohammadi v. Safari , a case in which Farzana acted as Counsel on behalf of the Applicant and whereby the ambiguity depicted within the Maher Agreement, led to what one would believe to be a partial enforcement. – Despite the Respondent’s opposing claim that the Mahr Agreement in which he initially agreed to, should be considered invalid. That said, the standards to which could make a Mahr agreement enforceable is very much akin to those of any other domestic contract. To be valid in Ontario, a Mahr must: Be in writing, signed by the involved parties and witnessed. Financial disclosure must be provided by the parties to one another Must be signed without duress Whilst the enforceability still depends on the specific facts of each case, it is imperative that you seek independent legal guidance. Talk to one of our South Asian lawyers today in our Toronto office location. For more information on how we can assist, please contact our office online or directly on (416) 449-1400 “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawOctober 20, 2018July 5, 2023
