In Gray v. Gray, the Court of Appeal for Ontario de-listed an appeal from the Superior Court of Justice, Family Court Branch (“Family Court”) until the appellant’s motion to set aside the order at issue was decided. MaPherson J.A., on behalf of a unanimous Court, concluded that a motion under r. 25(19)(e) of the Family Law Rules, rather than an appeal, was the proper route for the appellant to challenge an order made in his absence in the Family Court.

Background

The appellant failed to appear for a trial in the Family Court. In his absence, the trial judge accepted the respondent’s evidence and expert report, fixed the appellant’s spousal support arrears, and ordered the appellant to pay ongoing monthly child support.

In June 2016, the appellant appealed the trial judge’s order to the Court of Appeal. He also commenced a motion in the Family Court to set aside or change the trial judge’s order pursuant to r. 25(19)(e), which provides that the court may “change an order that … was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.”

The respondent brought a motion to quash the appellant’s appeal for lack of jurisdiction. She argued that the proper procedural route for the appellant was the motion to set aside the trial judge’s order in the Family Court, not an appeal to the Court of Appeal.

Court of Appeal Decision

There were two issues before the Court of Appeal: (i) does r. 25(19)(e) give trial courts the jurisdiction to set aside an order; and (ii) what was the proper procedural route for the appellant in this case?

On the first issue, MacPherson J.A. noted that there were conflicting decisions from lower Ontario courts on whether r. 25(19)(e) authorizes a court to set aside an order. MacPherson J.A. concluded that a court can set aside an order under r. 25(19)(e) because of the broad definition of the term “change” in the Family Law Rules, prior comments made by the Court of Appeal on this issue, and because this interpretation promoted the underlying philosophy, scheme, and purpose of the Family Law Rules.

As a result of his conclusion on the first issue, MacPherson J.A. held that the proper procedural route for the appellant was a motion under r. 25(19)(e), and not an appeal. While the Court of Appeal retained jurisdiction to hear any appeal of a final order, MacPherson J.A. concluded that r. 25(19) provided a more effective way to correct orders within its ambit. Therefore, while the motion to quash was dismissed, MacPherson J.A. ordered the appeal scheduling unit to de-list the appeal until the appellant’s motion under r. 25(19) was decided.