Skip to content

Double Trouble: Husband Loses Bid to Have Duplicate Court Orders Set Aside

Double Trouble: Husband Loses Bid to Have Duplicate Court Orders Set Aside

In a recent decision called Gray v. Rizzi, a husband was unsuccessful in having either of two contradictory and duplicative court orders – one less advantageous than the other – set aside. Despite the (perhaps surprising) outcome, the decision raised an interesting point about the court’s jurisdiction in dealing with family law orders that are mistakenly obtained.

The matter started routinely enough: the wife had sued the husband for child and spousal support. When he failed to comply with an order to file his response and financial statements within 30 days, the wife was allowed to proceed without him on a “default” basis, and obtained a court order. Later, the parties also attended in court together on another date, and an order was issued that day, too. In the end, the wife had inadvertently obtained two conflicting court orders in her favour – one that imputed the husband’s income for support purposes as being $90,000, and the other establishing his income at $133,000.

After she realized her mistake, the wife had the second, higher-income order confirmed; the husband was accordingly ordered to pay spousal and child support based on an earnings of $133,000, which he did. However, he eventually stopped paying, and applied to the court to set one or both of the conflicting orders aside.

The husband framed his argument in two different ways: 1) he claimed that the first default order should be set aside as provided by the Family Law Rules; and 2) he contended that the second order was granted by mistake, and should not be allowed to stand.

The husband’s first argument did not persuade the court. It found that in order to successfully set aside a default order the husband had to satisfy a three-part test: 1) he had to explain his failure to defend; 2) he had to move with dispatch to set aside one or both judgments once he realized there were conflicting orders; and 3) he needed to demonstrate that he had at least an arguable defence on the merits. Here, the husband knew about both orders in 2005, but neglected to bring a motion until four years later. That delay alone disqualified him from succeeding on this basis.

The husband was equally unsuccessful with the second line of argument. He had claimed that since the first judge already ruled that the husband’s imputed income for support purposes was $90,000, that judge had taken control (or had become “seized”) of the litigation and had exclusive jurisdiction to decide any other matters arising from it – including the power to reconsider, vary or revoke the original judgment. In other words, since support issues and income levels had already been determined on a final basis by the first judge, it was not jurisdictionally open to the second judge to make an order that the husband’s income was $133,000, the husband claimed. That purported second order was therefore rendered by mistake. To hold otherwise would allow two duplicate judgments, each relating to the same issues and the same parties, to stand.

However, once again the court was not convinced. It reviewed the Family Law Rules and found that while courts were indeed generally entitled to make changes to an order, the discretion was restricted to narrow circumstances, i.e. where the order had been obtained by fraud, contained a mistake, or where there was a lack of notice of the hearing that resulted in the order. With that in mind, the husband in this case had to establish that the second judge made a “mistake” in granting the order.

The court found there had been no legal “mistake” here. First of all, the Rules on which the husband relied did not allow for changes to orders based merely on fresh evidence or circumstances that were revealed after-the-fact. They also did not extend to correcting legal or jurisdictional errors. Both orders were otherwise regular in form and content. And although there was an ancient and inherent jurisdiction in the courts to set aside an order in the interests of justice, it was accompanied by a fairly stringent test, including a requirement that the husband have acted diligently in asking the court to change the order, and proof that the order is necessary to prevent a miscarriage of justice.

The court found once again that those tests were not met here; and it emphasized that the husband had delayed in seeking to have the order set aside. However, he was still entitled to come back to court to bring a motion to try to vary the order, or else have it adjusted to retroactively bring about justice between the parties.

For the full text of the decision, see: Gray v. Rizzi http://bit.ly/i3TkQl

Additional information on family law issues can be found on our web site  www.russellalexander.com