Court Cases & Orders

Oops! How Should a Family Court Decision be Corrected?

oops man
Written by Russell Alexander / (905) 655-6335

In Gray v. Gray, the husband in a matrimonial dispute was faced with a “worst-case” scenario:  The trial, which had been scheduled on the first day of work in a new job, had gone ahead without him.

The husband, who had Multiple Sclerosis, had sent a friend in his place that day, to explain his absence to the court.   With this medical condition, work was hard for him to find, and it seems that just the night before, he had been hired for a new job in construction that started the next day.  He decided that he could not risk compromising his new position and sent his friend to court in his place.

But the judge decided that the husband’s new job was


not a sufficient excuse, and proceeded with the trial without him. The trial judge essentially approached the matter as being “on default,” accepted the mother’s evidence in full, and essentially found in her favour on all issues.

Image result for empty courtroom

This prompted the husband to launch an appeal, based on the fact that the order had been made in his absence.  But under Ontario Family Law, the procedural route for doing so was unclear.  He could either:  1) to bring a motion to the same Family Court, to “set aside” its own prior trial decision; or 2) to launch an appeal to the Court of Appeal.

Perhaps to “hedge his bets” the husband did both.   The mother, who resisted the appeal, claimed that the proper course was for the husband to first bring a motion, and – if unsuccessful – launch an appeal only as a second step.

This scenario sparked an interesting procedural issue that ended up before the Ontario Court of Appeal, which had to decide which of the two routes was the appropriate one.  The determination hinged on the wording of Rule 25(19)(e) of the Family Law Rules, which allows Family Court to “change” a prior decision that had been made in error, which included situations where it was made even though one of the parties was not in attendance due “for a reason satisfactory to a court”.

The Court of Appeal looked closely at the wording of the Rule, the history behind it, and the broader Family Law context in which it operates.  Although the word “change” was not defined to include “set aside”, an expansive interpretation of the provision “promotes the underlying philosophy, scheme, and purpose of the Family Law Rules.”  That interpretation required the husband to first proceed by motion, and was the most effective one way for the trial court to correct orders that fell within its ambit.

The Appeal Court accordingly ordered the husband’s appeal de-listed, until his motion to set the order aside could be decided in the Family Court.  If – and only if – that motion was dismissed, he could bring a formal appeal before the appellate court.

For the full text of the decision, see:

Gray v. Gray

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.