Although the following case is not within a family law context, it’s discussion on the issue of setting aside a default order will shed light to the Honourable Court’s treatment of the same in the family law realm:
Sometimes a legal proceeding may be commenced under circumstances where one party is not in a position to respond to the proceeding. In fact, sometimes a party may not have filed any material or may not have able to make an appearance before the court. In such circumstances, a default judgment may be entered against such a party and it may prohibit the party from participating in further proceedings.
However, all is not lost when a default judgment is entered against a party, as a motion could be brought to set aside the default judgment. The test for setting aside a default judgment has three considerations:
1) was the motion to set aside a default judgment promptly made after the applicant becomes aware of it;
2) does the moving party’s affidavit give a plausible/adequate explanation for the default; and
3) has the moving party set forth facts to support that there is at least an arguable case to present on its merits.
These considerations are not rigid in a manner that the failure of fulfilment of one leads to the dismissal of the motion. In a recent Superior Court decision, Kiteley J. noted that a “motion judge must ultimately determine whether the interests of justice favour an order setting aside the default judgment and consider the potential prejudice to the moving party if the motion was dismissed as well as the potential prejudice to the responding party should the motion be alowed as well as the effect of any order the motion judge may make on the overall integrity of the administration of justice”.