Best Practice for Uncontested Trials in Ontario: Insights from Phelan v Givlin, 2023 ONSC 3917

When considering how much does a simple divorce cost in Ontario, understanding the procedural nuances of uncontested trials is crucial, as these can impact legal fees and outcomes. The case of Phelan v Givlin, 2023 ONSC 3917 offers valuable guidance on best practices for uncontested trials in family law, particularly when one party fails to respond. This article examines the case, its implications, and how it informs cost-effective strategies for a simple divorce in Ontario.

Overview of Phelan v Givlin

In this family law case, the court addressed whether to set aside an uncontested trial order. The Applicant served her Application in January 2022, and the Respondent failed to file an Answer by the deadline. The Applicant granted a 30-day extension until August 16, 2022, for the Respondent to file. By early August, both parties agreed to mediation, which occurred in September and October 2022. Despite participating in mediation, the Respondent did not file an Answer. In November 2022, the Applicant, without notifying the Respondent, proceeded to an uncontested trial, securing an order addressing parenting, support, and property issues. The Respondent later moved to set aside this order, raising questions about procedural fairness and its impact on costs, including how much does a simple divorce cost in Ontario.

Issue

Should the court grant the Respondent’s motion to overturn the uncontested trial order, given the specific circumstances of the case?

Discussion

To decide whether to set aside the uncontested trial order, the court applied the test from Zia v. Ahmad, 2021 ONCA 495, which includes the following criteria:

a. Did the moving party act promptly to set aside the order after learning of it?b. Has the moving party provided an adequate explanation for failing to respond per the Family Law Rules?c. Does the moving party have an arguable case on the merits?d. Is the moving party acting in good faith with “clean hands”?e. What prejudice would the moving party face if the motion is denied, or the responding party face if the motion is granted?f. Do the interests of justice favor setting aside the order?

The court found that the Respondent acted promptly upon learning of the order. Regarding the failure to respond, the court noted that an adequate explanation, not a perfect one, is sufficient. Here, the Respondent’s participation in mediation, coupled with the Applicant’s failure to notify them of abandoning mediation for an uncontested trial, justified the delay. The court found it reasonable for the Respondent to assume litigation was paused during mediation.

The Respondent also demonstrated “clean hands” by preparing a draft Answer by the extended deadline, which was not filed due to ongoing mediation. The court further determined that the Respondent had an arguable case on the merits and would face significant prejudice if the order stood, as they were unable to present their position. These factors are critical when considering how much does a simple divorce cost in Ontario, as procedural missteps can increase legal expenses.

The court’s discussion emphasized best practices for uncontested trials. While some practice directions, such as in the Superior Court Central West region, state that no further notice is required for an uncontested trial after proper service and a missed Answer deadline, Phelan v Givlin advocates a different approach. Citing cases like Roberts v. Santilli, 2019 ONSC 64 and Campeau v. Campeau, 2005 CanLII 25948, the court, per Justice Chown, stressed that it is “by far the better practice” to notify the defaulting party of an uncontested trial. This ensures fairness and reduces the likelihood of subsequent motions to set aside orders, which can inflate costs and complicate what should be a simple divorce process in Ontario.

The court reasoned that notifying the defaulting party minimizes further litigation, benefiting both parties and the court system. In this case, the Applicant’s failure to provide notice, despite the Respondent’s active engagement in mediation, undermined the order’s stability and increased costs for both parties.

Conclusion

Phelan v Givlin, 2023 ONSC 3917 underscores the importance of procedural fairness in uncontested trials, which directly impacts how much does a simple divorce cost in Ontario. While practice directions may permit proceeding without notice after a missed Answer deadline, the court strongly recommends notifying the defaulting party to avoid subsequent challenges. In this case, the Respondent’s active participation in mediation and prompt motion to set aside the order justified overturning the uncontested trial order. For those pursuing a simple divorce in Ontario, adhering to best practices like providing notice can prevent costly disputes, keeping legal fees—typically $999 for professional services plus $650–$700 in court fees—within the expected range of $1,649–$1,699. By following these guidelines, couples can ensure a smoother, more cost-effective divorce process.