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  • Writer's pictureJared Davies, Lawyer

Uncontested trial pursuant to Boisvert v. McDonald, 2023 ONSC 4824

Background


This matter proceeded by way of an uncontested trial. Previous orders had been made by the court giving the Respondent the opportunity to participate. Unfortunately, the Respondent did not participate. Accordingly, the case can proceed without the defaulting party. One factor that may make a judge hesitant to grant an uncontested order would be the issue of service and ensuring it was properly done. However, in the current case, the court said:


Service is in order. Based on my review of the record, and the respondent’s attendance before me at a case conference, he was aware of these proceedings. He has had an opportunity to participate. He has failed to do so. In accordance with the Family Law Rules, O. Reg. 114/99 (“Rules) I am satisfied that this application may proceed by way of uncontested hearing. The time for filing an answer and compliance with the order made have expired. The consequences as set out in paragraphs 1 to 4 of subrule 1(8.4) of the Rules, apply, with necessary changes, if a respondent does not serve and file and answer. The consequences are that the respondent is not entitled to any further notice of steps in the case (subject to subrule 25(13) (service of order)); the respondent is not entitled to participate in the case in any way; the court may deal with the case in the respondent’s absence; and a date may be set for an uncontested trial of the case, on request, pursuant to (r. 17 of the Rules).


Beyond the consequences listed above of failing to participate in the case, the court cited the next biggest consequence, namely:


Given there is nothing filed by the respondent in this case, I have no reason on the record before me not to accept the evidence the applicant relies on regarding the background, the history of the proceedings, the parenting time, the decision-making responsibilities, income of the parties, s. 7 expenses, arrears, benefits, insurance, and for the request for divorce.


In other words, the Applicant’s uncontested evidence was accepted and relied on by the court to make orders on the case.


Summary of orders made


In considering the best interests of the child, the court places paramount importance on stability, security, and the child's overall well-being. The Applicant gave evidence to suggest she provided a stable environment for the child with a documented history of primary care. The child's special needs further underscore the significance of maintaining a secure and nurturing environment. The court found it was in the child's best interest for the Applicant to have sole decision-making and primary care of the child. The Applicant also claimed the Respondent had an issue with drugs. As such, his parenting time was to be supervised.


The court imputed income to the Respondent of around $70,000.00 based on the Applicant’s evidence and his own failure to produce any evidence. Table child support was awarded accordingly, including arrears, and the Applicant’s section 7 expenses for the child were deemed reasonable. The Respondent was awarded to pay a little over half of those expenses considering his income in comparison to the Applicant's income. The Respondent was also ordered to pay costs in the amount of $15,000.00.


Conclusion


This case illustrates the consequences of failing to participate in the family law process. In short, an uncontested trial can be ordered against you. In this case, the court found that there was no reason not to take the facts presented by the Applicant as the true sequence of events. This led to a parenting order, support order and costs award.

Kommentare


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