Best practice with respect to uncontested trials pursuant to Phelan v Givlin, 2023 ONSC 3917
In a recent family law case, the court had to decide whether to overturn an uncontested trial order. The Applicant served her Application effective January 2022. The Respondent was very delayed in submitting an Answer and missed the deadline. However, by July 16, 2022, the Applicant granted the Respondent a 30-day extension giving the Applicant until August 16, 2022 to file an Answer. By early August, the Applicant and Respondent agreed to mediation. This mediation took place in September and October of 2022. The Respondent, who proceeded to mediation, did not file an Answer. In early November 2022, the Applicant, without notice, proceeded to an uncontested trial. An order was granted on an uncontested basis, addressing parenting, support, and property issues. In the current case the Respondent filed a motion to set aside the order obtained through the uncontested trial.
Should the Respondent’s motion to overturn the uncontested trial decision be granted in light of the specific circumstances?
To determine whether to overturn the uncontested trial order, the court analyzed the test as set out in the Court of Appeal decision of Zia v. Ahmad, 2021 ONCA 495:
a. whether the moving party moved promptly, after learning of the order, to have it set aside;
b. whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;
c. whether the moving party has established an arguable case on the merits;
d. whether the moving party is acting in good faith and with “clean hands";
e. the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and,
f. whether, in the final analysis, the interests of justice favour setting aside the judgment.
In this case, the Respondent moved promptly.
The court reemphasized that the moving party need only have an adequate explanation and not a perfect explanation for their failure to respondent in accordance with the rules. In this case, there was clear evidence that the parties were in mediation and that the Applicant moved by way of an uncontested trial without notifying the Applicant that she would not be proceeding to a further mediation session. The court said that it was easy to see how the Respondent thought litigation was on hold given the parties were in mediation.
The Respondent further proved he had a draft Answer ready by the 30-day deadline the Applicant gave to him, which he would have served but for mediation. The court said this spoke to the "clean hands" of the Respondent.
Without getting into too much detail, the court found that the Respondent had an arguable case on the merits. And further, the court found that the Respondent would suffer greater prejudice if the uncontested order was not overturned because he could not put forward his position.
The crux of the discussion, however, really centres around what the “better practice” for lawyers is. On the one hand, certain practice directions indicate that a litigant is free to move for an uncontested trial without need to further notify the Respondent after the Respondent is in default. For example, the practice direction in the Superior Court Central West region says:
If no Answer has been filed within the Family Law Rules timelines, an Applicant may seek final Orders on an uncontested trial by 14B Motion (Rule 23(22)). Assuming proper service of the Application was made on the opposing party and has been documented in the file, notice of an uncontested trial on a defaulting party is not necessary.
But in Givlin, the Court reviews a different perspective some courts have taken. Namely, that it is "by far the better practice" to serve the uncontested motion materials on the defaulting party in the opinion of Justice Chown:
 This jurisprudence has also been adopted in family cases: Roberts v. Santilli, 2019 ONSC 64; Provenzano v. Provenzano, 2004 CanLII 5075 (ON SC), at para. 10. An early example in a family case is Campeau v. Campeau, 2005 CanLII 25948, at para. 19. In it, the court adopted the reasoning in Mueller-Hein, saying that even where it is arguable that a rule may authorize an ex parte motion, a lawyer should consider whether the better practice would be to give notice, and that this will be an easy decision for the lawyer where it is apparent that, when the ex parte order comes to the attention of the adverse party, that party will probably move to set aside the order.
 I agree with the perspective that it is “by far the better practice” to give notice to the defendant or respondent when seeking default judgment in civil proceedings or in an uncontested trial in family proceedings. The outcome of this case demonstrates why. It should have been obvious to the applicant that the order made after an uncontested trial was very likely to only result in further proceedings.
 It is typically better for all concerned including the court and the non-defaulting client to ensure that the defaulting party has knowledge of the proceeding and the default hearing and appears to have chosen not to participate. When that is the case, the default judgment is much more likely to withstand a motion to have it set aside or changed. In the circumstances of this case, the applicant should have served her materials for the uncontested trial on the respondent.
The case of Phelan v Givlin raises important considerations regarding best practices for uncontested trials. Certain practice directions and decisions suggest that parties can proceed with an uncontested trial, after proper service of an Application, without any further notice, when the Responding party fails to file an Answer on time. However, the court in Givlin highlighted that it is a better practice to provide notice to the opposing party especially in the circumstances of this particular case. The court emphasized that it is "by far the better practice" to give notice of the motion when it is obvious that the Responding party will move to set aside the uncontested order and wants to participate. In this particular case, the Respondent was fully involved in mediation and wanted to participate in the process when the uncontested order was made. The Respondent was successful.