Simon's Megalomaniacal Legal Resources

Family - Set-Aside

. Kim v. McIntosh

In Kim v. McIntosh (Ont CA, 2023) the Court of Appeal noted, here in a family law case, that the court could adjourn an appeal pending the bringing of a set aside ["change"] motion [this under Family Court Rule 25(19)]:

[29] In March 2022, Rouleau J.A. heard a motion brought by the appellant to de-list the appeal so that he could bring a proceeding under r. 25(19) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) in the trial court to set aside the decision of Steele J. Rouleau J.A. dismissed the motion (M53227, M53271), holding that the order of Steele J. was a final order, appealable to the Court of Appeal.

[30] We agree with the reasons of Rouleau J.A. The order of Steele J. clearly determined the substantive rights in the proceedings and stands as a final order. The appellant relies on Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65. That case confirms the final nature of the order in issue here: see Gray, at para. 34. Gray also stands for the proposition that this court may, in the exercise of its discretion, adjourn an appeal to allow a party to bring a motion in the trial court under r. 25(19) of the FLRs. Gray does not suggest that this court must delay pending appeals whenever a party indicates a desire to bring a motion under r. 25(19).

[31] Rule 25(19) does allow for a motion in the trial court to “change” an order. That authority can be exercised only in certain situations. Section 25(19)(d) would appear to be the only provision applicable here. It provides

The court may on motion, change an order that,

(d) was made without notice