Consent (Review)

Joshi v. Joshi, 2014 ONSC 4677 (CanLII)

[3] It is the moving party's position that the responding parties have failed to comply with the order as regards disclosure and thereby, in essence, frustrated the order, that the consent order must be read in light of the previous order of Croll J. in the family law action, which has not been complied with as regards disclosure and that material circumstances have changed, justifying the varying or setting aside of the order.

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[6] Based on the jurisprudence, in order to set aside a consent order, there must be proven grounds of common mistake, misrepresentation, fraud, or any other ground which would invalidate contract or, alternatively, a material change in circumstance occurring after the consent order : Gibson v Gibson [2002] O.J. No. 174 paras. 15-16; Masters v MIS International Inc., [2000] O.J. No. 3524 and see Rosen v Rosen1994 CanLII 2769 (ON CA), [1994] O. J. No. 1160 (O.C.A.).

Burke v. Poitras, 2018 ONCA 1025 (CanLII)

[9] Here, the consent order itself put the appellant on notice of the consequences of his failure to comply. In addition, the appellant received notice, albeit short notice, that the respondent was seeking to enforce the consent order and strike his Answer. The appellant admitted at the settlement conference that he failed to comply with the consent order that required disclosure of a carefully itemized and substantial list of financial and other documentation. These were material documents necessary to permit the matter to proceed to trial or to properly negotiate a settlement. While the appellant complains of procedural unfairness, we are not persuaded that it would have made any difference had the respondent brought the motion to enforce the consent order on a different day. There is no issue that even as of the hearing of the appeal, the appellant still had not complied, or even demonstrated good faith attempts to comply with the consent order.

[10] The appellant also argues that the respondent agreed not to strike his Answer while their respective counsel were trying to work out disclosure and other issues. While the respondent provided the appellant with an indulgence, which did not result in significant disclosure, we are not satisfied there was an agreement to refrain indefinitely. More importantly, the respondent’s four-month forbearance in enforcing the consent order did not excuse the appellant’s lack of compliance with a binding and conclusive court order.