What happens when you do not file an Answer?

After receiving a family law Application, the Respondent has 30 days to serve and file an Answer. Rule 10 of the Family Law Rules partly covers the obligations and rights of the Respondent, including the right to “plead” relief against the Applicant in said Answer. However, occasionally, the Respondent does not file an Answer or does not file an Answer on time. Absent written consent from the opposing party, failing to file an Answer on time can be extremely problematic for the Respondent.

Rule 10 says that: [t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply, with necessary changes, if a respondent does not serve and file an answer. Therefore, if a party does not serve and file an Answer, subrule 1 (8.4) of the Rules applies and says:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party’s absence.

4. A date may be set for an uncontested trial of the case.

In other words, the court case can proceed without the Respondent participating and orders can be made against them without notice, especially by way of an uncontested trial which will result in final orders. An uncontested trial is normally heard by way of affidavit evidence, unless the court requests an oral hearing for clarification. In essence, the court will only have the benefit of the Applicant’s affidavit, which, consequently, could result in unfavourable orders against the Respondent.

In the recent case of Hellman v Morin, 2022 ONSC 717, the father was served and yet did not file an Answer. The mother moved to have the case heard by way of an uncontested trial. The court considered whether it was an appropriate case for an uncontested trial:

4 Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR“), provides for 30 days in which a Respondent may serve and file an Answer, failing which "[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply" pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

5 An "uncontested trial" is defined at r. 2(1) as "a trial at which only the party making the claim provides evidence and submissions."

6 In this case, the father was served on July 3, 2021, with the mother's original application dated May 5, 2021. A first appearance dated was set for July 22, 2021. The father appeared and was self-represented. The matter was adjourned for a second appearance on August 12, 2021. The July 22nd endorsement indicated that the father was to file has Answer and financial disclosure by August 6, 2021, failing which the matter could proceed by way of an uncontested trial.

7 At the second appearance on August 12, 2021, the father did not appear. A case conference was scheduled for January 14, 2022. The August 12th endorsement indicated that on consent and with the permission of the court, the father was allowed to file his Answer and financial disclosure by September 1, 2021, failing which the matter could proceed by way of an uncontested trial. The father was to file a case conference brief by January 10, 2022.

…

9 To date the father has not served an Answer or any other materials. Counsel for the mother did not hear further from Mr. Van de Kleut. Counsel for the mother requested that the case conference be converted to an uncontested trial, and the request was granted. The father was served an affidavit for an uncontested trial dated January 10, 2022. The father did not appear on January 14, 2022 for the uncontested trial.

10 Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: rule 23(22) FLR. In this case, I directed the mother to testify under oath about the events leading up to the uncontested trial and the basis for her parenting requests.

11 The mother testified that the father did receive the materials for an uncontested trial because he showed up at her residence 10 minutes after service very upset and angry. He told her he was trying to get in contact with his counsel, that his lawyer told him that he needed his tax returns, and that this was the hold-up. The mother testified that the father also told her the night before the uncontested trial hearing that he would not be here because he did not have counsel.

12 Based on the evidence filed and heard, I am satisfied that the requite conditions have been met to proceed with this matter as an uncontested trial. The father has had over a year to provide a response to the court regarding his position on parenting issues. He was given multiple opportunities beyond the requisite 30 days and has not filed an Answer, not retained counsel, and not appeared or contacted the court.

However, this does not mean that it is suddenly a free-for-all for the Applicant. The Applicant still has to put forth proper evidence and prove their case. The Court continues in Hellman:

13 The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought….

After an uncontested trial occurs and the Applicant's relief is granted, the Respondent may bring a motion to try and set aside the default judgement—it is yet to be seen whether the Respondent in Hellman will move to do this. A separate post deals with some of the relevant factors in trying to set aside this type of judgement.

Obvious takeaways? Filing an Answer in the prescribed deadline is imperative for the Respondent. If they fail to do so, the Applicant may move for default judgement without notice to the Respondent, where the Applicant will have the opportunity to present uncontested evidence to try and get their relief.