On April 5, 2012, an Application was brought in Family Chambers at which the Respondent failed to appear. An Order was granted reflecting that the Respondent had failed to appear, although properly served, and the Applicant received a $5,000 credit towards his Maintenance Enforcement Program obligations, representing the apparent overpayment of certain Section 7 expenses. 

Three weeks later, counsel for the Respondent advised the Court that his client received a copy of the Order, but was never properly served with the Application. The Respondent argued that the Applicant was acting on his own behalf and had sent the Respondent unfiled documents related to the Hearing. Because such documents could be changed, altered or revised before they were filed and became a part of the Court record, counsel for the Respondent argued that he was justified in not responding on behalf of the Respondent. The Applicant argued that he served the Respondent by delivering a Notice and sworn Affidavit, which he received back from the Clerk of the Court, to the office of the Respondent’s counsel more than three weeks prior to the Application return date.

Lee J. held that the Applicant failed to adequately address the allegations made by the Respondent, particularly whether filed copies of documents were served. If unfiled documents were served, the Applicant did not comply with Rule 6.3(3).

Lee J. further held that Rule 9.15(1) provides that the Court may set aside, vary or discharge a Judgment or Order where it was made without Notice to one or more Parties. Lee J. held that it was clearly the Respondent’s intention to challenge the Application and, as such, the non-appearance by the Respondent’s counsel at the April Hearing was an accident or mistake as contemplated in Rule 9.15(1)(b). Lee J. concluded that the Respondent should have the opportunity to respond to and challenge the Application, notwithstanding the accident or mistake that occurred. As such, Lee J. vacated his Order and remitted the matter to Family Law Chambers.