What is the test for setting aside a default custody order under clause 15(14)(e) of the Family Law Rules?

Ontario, Canada


The following excerpt is from Children's Aid Society of Halton Region v. R.(C.J.), 2005 ONCJ 514 (CanLII):

[20] In Chambers v. Johnson, supra, Justice Little agreed to set aside a default custody order under clause 15(14)(e) of the Family Law Rules. In that particular case, the respondent was served on 21 October 2001. The first return date was within the 30-day period available to the respondent for filing his answer and other documents. An order of 14 November 2001, was made just outside the 30-day period. The respondent had not filed anything at that time. On 21 December 2001, the respondent filed a motion returnable on 16 January 2002 to set aside the order of 14 November 2001. Justice Little found that the respondent made an inadvertent series of errors and that the order made on 14 November 2001, should be set aside. In paragraph [5] of her judgment she stated:

[5] . . . I acknowledge the fundamental principle that the court must act fairly and be seen to act fairly as between the parties and to determine the best interests of the child. In such a case as this, the best interests of the child are better met by a hearing on the merits with evidence tendered by both parties. . . . In my view, the respondent’s errors were a series of errors that amount to an “accident”, the word used in clause 15(14)(e). Justice Little therefore set aside the default order. Similarly in Leifo v. Leifso, supra, Justice O’Dea, adopting Justice Little’s reasons, concluded that he had jurisdiction to set aside the final order in the circumstance of that case.

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