2020 ONSC 1471
In a March 6, 2020 decision, Honourable Madam Justice Lene Madsen of the Ontario Superior Court of Justice upheld a final order obtained in 2012, dismissing the Respondent’s request to set aside a decision which had granted retroactive and ongoing child and spousal support in favour of the Applicant.
The ruling concerned divorce proceedings between the Respondent and Applicant spanning over a period between 2010 and 2016. In 2012, the Applicant brought a successful motion without notice seeking retroactive and ongoing child and spousal support, prejudgment interest and costs. In 2016, the Respondent initiated a motion to change in response to the decision. Both parties argued that the opposition did not act out the legal proceedings, including documentation filing and service of orders, in a timely manner.
In consideration of the Respondent’s request to set aside the final order, Justice Madsen applied r. 25(19) of the Family Law Rules and applicable caselaw, which outlined a list of five factors to set aside an order obtained without notice. While Justice Madsen found that both the Applicant and Respondent omitted to take all of the steps they should have taken at the times they should have taken them during the original Application, she concluded that the Respondent ultimately failed the test in providing an adequate explanation to his delay in bringing a motion to change four years after the ruling of the final order. The Respondent’s request was ultimately dismissed.
Kaitlin Jagersky of Miller Thomson represented the successful Applicant in the proceedings.