Form 8 – Affidavit to Set Aside Default Judgment or Interim Judgment

Jurisdiction: Country: Canada | Province or State: New Brunswick

What is a Form 8 – Affidavit to Set Aside Default Judgment or Interim Judgment?

Form 8 is a sworn statement you file in New Brunswick Small Claims Court. You use it to ask the court to cancel a default judgment or an interim judgment made against you. It explains why the judgment should be set aside and what defense you plan to raise if the case is reopened.

A default judgment happens when you do not respond to a claim in time or you miss a scheduled appearance. The court may enter judgment against you without a hearing on the merits. An interim judgment is a partial or temporary order. It may address some issues before the final hearing, or record an admission you did not intend to make.

You typically use this form if you are the defendant or respondent. You file it after you discover a judgment was entered without your side being heard. You can also use it if you missed a step for a good reason and you have a real defense. In rare cases, a claimant may use it if an interim order they requested was made in error and needs correction, but most users are defendants.

You need this form when you want the court to undo a judgment and let the case proceed on the merits. You must explain why you did not respond or attend, and show you have an arguable defense. You should act quickly after learning of the judgment. You should also ask for a temporary stay of enforcement until the court decides your request. You do that in your affidavit.

Typical scenarios include wrong service address, serious illness, miscommunication with a lawyer or insurer, or a clerical error. You may have paid the debt already and can prove it. You may dispute the amount or the quality of goods or services. You may be the wrong party sued. Form 8 gives the adjudicator the facts needed to decide if the judgment should be set aside and the case reopened.

When Would You Use a Form 8 – Affidavit to Set Aside Default Judgment or Interim Judgment?

You use Form 8 when a judgment was entered without your full input, and you have a good reason and a defense. For example, you moved and did not receive the claim because it was served at an old address. You find out about the judgment when a collection letter arrives. You act at once. You file Form 8 to explain the address change and attach proof.

You may also use it when you are ill or hospitalized and cannot respond on time. You attach medical documents that show the dates. You explain that you acted as soon as you recovered enough to deal with the claim.

Small business owners use this form when the mail goes to a closed location or an employee misplaces the claim. You show the internal steps you took and how you will prevent it in the future. You outline your defense, such as defective goods, disputed invoices, or a payment made.

Landlords and tenants use it when an interim judgment fixes an amount due based on a missed settlement conference. You explain why you missed it and why the amount is wrong. You attach rent ledgers, receipts, and messages that support your position.

Contractors use it when a default judgment claims non-payment, but you have a signed change order and proof of payment. You attach the contract, change orders, and bank statements. You explain why you missed the reply deadline, such as travel or staffing issues.

Consumers use it when a debt buyer obtained a default judgment with a balance that includes fees not allowed. You attach prior statements and any dispute letters. You outline your defenses, such as identity theft, payment, or limitation. You also ask for a stay to pause enforcement.

Drivers use it when an interim judgment sets liability by default after a missed appearance. You explain a calendar error or storm closure. You attach proof of road conditions or notices. You state your defense, such as the other driver’s sudden stop.

In short, you use Form 8 when you can show two things. First, you had a valid reason for not replying or attending. Second, you have a real issue to try at a hearing. You should file promptly once you know about the judgment. Delay hurts your chances, so move fast.

Legal Characteristics of the Form 8 – Affidavit to Set Aside Default Judgment or Interim Judgment

Form 8 is a sworn affidavit. You sign it before a commissioner for oaths, a notary public, a lawyer, or a court officer authorized to take affidavits in New Brunswick. Your statements are under oath or affirmation. False statements expose you to penalties. Treat every fact with care and accuracy.

The affidavit itself does not set aside the judgment. It supports your request for the court to do so. The adjudicator uses your affidavit and any exhibits to decide whether to grant your request. The court looks at several factors. Did you act quickly after learning of the judgment? Do you have an arguable defense that deserves a hearing? Was the service proper? Will setting it aside cause unfair prejudice to the other party? Are you acting in good faith?

If the court grants your request, it will issue an order that sets aside the default or interim judgment. That order is legally binding. It reopens the claim so both sides can be heard. The court may also set new deadlines, such as a date to file your Reply. It may impose conditions, such as paying costs or complying with a timetable.

Enforcement does not stop just because you file Form 8. You must ask for a stay of enforcement. You do that in your affidavit and at the hearing. The court may order a temporary stay until your motion is decided. If granted, a stay prevents steps like wage garnishment or seizure while the court considers your request.

The burden is on you to satisfy the court that setting aside is just. You do not need to prove you will win at trial. You need to show a reasonable defense and a credible reason for the default. Keep your affidavit focused, factual, and supported by documents.

How to Fill Out a Form 8 – Affidavit to Set Aside Default Judgment or Interim Judgment

Step 1: Get your documents.

Obtain a copy of the Claim and the judgment entered against you. Get any notices of hearing or correspondence. Gather proof that supports your reason for the default. Collect proof of your defense. Examples include receipts, contracts, emails, photos, and bank records.

Step 2: Confirm the court details.

Identify the correct Small Claims Court office where the claim was filed. Note the judicial district listed on the claim, such as Moncton or Saint John. You will file your affidavit in the same court file.

Step 3: Complete the style of cause.

At the top of Form 8, write the court file number exactly as on the claim. Write the names of the parties as they appear on the claim. The claimant is the party who sued. The defendant is the party sued. Do not change the order of names.

Step 4: Identify yourself as the deponent.

In the opening paragraph, state your full legal name, address, and occupation. Confirm you are the defendant (or claimant, if applicable) in this action. State that you make this affidavit in support of a request to set aside the default judgment or interim judgment.

Step 5: Explain how and when you learned of the judgment.

State the date you first found out about the judgment. Describe how you learned about it, such as a letter, a call, or a notice from enforcement. Attach a copy of any letter or notice as an exhibit.

Step 6: Explain why you did not respond or attend.

Provide a clear, honest reason. Keep it specific and factual. Examples include wrong address, medical emergency, misfiled mail, severe weather, or counsel error. If service was improper, state why. If you tried to respond and failed due to a technical issue, explain the steps you took.

Step 7: Show that you acted quickly.

State the date you took your first step after learning of the judgment. Describe what you did, such as contacting the court, seeking advice, or preparing this affidavit. Prompt action supports your request.

Step 8: Outline your defense.

You must show an arguable defense. You do not need to prove it now. Summarize the key points in short, numbered paragraphs. For example, you paid the debt on a date. You dispute the amount due to defective work. You are not the correct party. The goods were returned and credited. Attach supporting documents. Mark each exhibit with a letter, like Exhibit A or Exhibit B. On each exhibit, add a short exhibit stamp or note that refers to your affidavit.

Step 9: Address prejudice and fairness.

State that the claimant will not suffer unfair prejudice if the judgment is set aside. Note that you seek only a chance to be heard. Offer to comply with any scheduling orders. If there will be some delay, explain why it is minimal.

Step 10: Ask for a stay of enforcement.

State that you request a temporary stay of enforcement until your request is decided. Explain any urgent enforcement risk, such as a scheduled garnishment. Attach proof if you have it.

Step 11: Ask for any needed extensions.

If you also need time to file your Reply, ask for that. Request a short, defined period, such as 10 or 20 days from the order. This shows you plan to move the case along.

Step 12: Attach your draft Reply if possible.

If you have prepared a draft Reply, attach it as an exhibit. This helps the court see your defense in detail. It also shows you are ready to proceed.

Step 13: Number your paragraphs and keep them clear.

Use short sentences. Each paragraph should cover one point. Avoid argument. Stick to facts within your knowledge. If you rely on information from others, say so and identify the source.

Step 14: Swear or affirm the affidavit.

Do not sign until you are before a commissioner for oaths, a notary public, a lawyer, or a court officer who can take affidavits in New Brunswick. Bring government ID. The commissioner will verify your identity and witness your signature. They will complete the jurat with the place and date.

Step 15: Review exhibits.

Each exhibit must be attached after the affidavit. The commissioner should sign or stamp the first page of each exhibit. Make sure every exhibit is legible. Avoid staples that obstruct text.

Step 16: Make copies.

Prepare at least two copies of the sworn affidavit and exhibits. Keep one copy for your records. You will need to serve a copy on the other party.

Step 17: File your affidavit with the court.

File it with the Small Claims Court office that issued the judgment. Pay any required filing fee. Ask the clerk about the next steps. The court may give you a hearing date or set a date later.

Step 18: Serve the other party.

Serve a filed copy of your affidavit and any hearing notice on the claimant. Use a permitted method of service. Keep proof of service, such as an affidavit of service, a receipt, or a signed acknowledgment.

Step 19: Prepare for the hearing.

Bring originals of your exhibits. Bring extra copies for the adjudicator and the other party. Organize your points. Focus on four themes. Service issues, reason for the default, prompt action, and your defense. Be ready to answer questions.

Step 20: Attend the hearing and present your request.

Arrive early. Dress respectfully. Address the adjudicator as “Sir” or “Ma’am.” Speak to the factors the court considers. Ask for the orders you need. These may include setting aside the judgment, a stay of enforcement, leave to file a Reply, and a timetable.

Step 21: Follow the court’s order.

If the court grants your request, note all deadlines. File your Reply within the time given. Comply with any conditions, such as paying costs or sharing documents by a set date. If the court denies your request, ask about the next options.

Content tips for your affidavit. Keep it factual and concise. Include dates, amounts, and names. Avoid speculation. Do not attach unnecessary materials. Attach only documents that support your reasons and your defense. Use a simple index of exhibits if there are many.

Common mistakes to avoid. Do not delay filing after learning of the judgment. Do not ignore enforcement while you wait. Ask for a stay. Do not submit an unsigned or unsworn affidavit. Do not omit the file number or judicial district. Do not forget to serve the other side.

Examples of strong supporting exhibits. A copy of the judgment and the original claim. Proof of address change. Medical notes for the relevant period. Email threads showing efforts to resolve or notices not received. Proof of payment, such as receipts or bank statements. Contracts and change orders. Photos or reports backing your defense.

How to handle service issues. If you believe service was improper, state the facts. Explain where you lived at the time and who, if anyone, could receive documents. Attach proof such as a lease, utility bill, or license showing your address. Note any delivery problems, such as mail forwarding failure.

What should be done if the claimant consents?

• If the other party agrees to set aside, ask for their written consent. Attach it to your affidavit. File it and still ask for a short hearing or an order on consent. The court must still make the order. Consent helps, but it does not replace the order.
• If enforcement is already underway, contact the enforcement office to share the hearing date once you have it. Ask the court for an urgent stay. Bring proof of the enforcement steps to the hearing. The court can stay further action if warranted.
• If you are a corporation or partnership. Identify who is swearing the affidavit and their role. State your authority to make the affidavit. Explain internal processes, if relevant, that led to the default. Attach corporate records only if they support your reasons or defense.
• If you need an interpreter. Tell the court office when you file. Ask for an interpreter for the hearing. Your affidavit must still be in English or French. If you include translated documents, attach the translator’s certification.
• If you settled before the judgment. Attach proof of settlement or payment. Explain the timeline. Ask the court to set aside the judgment to reflect the settlement. If any amount remains in dispute, outline it.
• After the order is made. If the judgment is set aside, treat the case as active. Meet all deadlines. Prepare for a settlement conference or hearing. Exchange documents as required. Keep your records organized.

By following these steps, you present a clear and credible request. You show the court why the judgment should be set aside and the case heard on the merits. You also show respect for the process by acting quickly, serving the other party, and focusing on facts.

Legal Terms You Might Encounter

• Default judgment means the court decided against you because you did not respond or attend. Form 8 asks the court to cancel that judgment so the claim can be heard on its merits.
• Interim judgment is a temporary or partial decision made before a final outcome. If you want to cancel an interim judgment, you also use Form 8 and explain why it should be set aside.
• Affidavit is your written, sworn statement of facts. Form 8 is an affidavit, so you must swear or affirm it before a commissioner of oaths or notary.
• Deponent is the person who swears the affidavit. You are the deponent for Form 8, and you must confirm the truth of each paragraph.
• Commissioner of oaths or a notary public is the official who takes your oath or affirmation. You must sign Form 8 in front of them, not in advance.
• Service means legally delivering documents to the other party. After you file Form 8, you usually must serve it and any hearing notice on the claimant.
• Set aside means to cancel or nullify a judgment. On Form 8, you ask the court to set aside the default or interim judgment and allow your defence.
• Merits of the defence means your real, arguable reasons why the claim should fail or be reduced. Form 8 should outline those reasons in clear facts.
• Good reason for not responding refers to a credible excuse for missing the deadline or hearing. Examples include no service, illness, travel, or misdirected mail. You must state the reason in your affidavit, with dates and proof.
• Stay of enforcement pauses the collection action on the judgment. In Form 8, you can ask the court to stay enforcement until your request is decided.
• Costs are the court-related expenses the judge may award. Your Form 8 can address costs, especially if you acted promptly and the default was not your fault.
• Proof of service is evidence that you served documents properly. Keep it ready if the court needs to confirm that the claimant received your Form 8.

FAQs

Do you qualify to use Form 8?

Yes, if a default judgment or interim judgment was made against you in Small Claims Court for this case. You use Form 8 to ask the court to cancel it and reopen the matter. If you were the claimant and default was entered against the defendant, you do not use this form.

Do you need a strong defence to file Form 8?

You need an arguable defence. You do not have to prove your defence now, but you must present facts that could matter at a hearing. State the key points in your affidavit and attach basic proof.

Do you have to explain why you missed the deadline or hearing?

Yes. The judge will want a clear reason and a timeline. Explain if you were not served, were away, were ill, or confused by the paperwork. Add proof where possible. Dates matter.

Do you need to serve the other party with Form 8?

Usually, yes. After you file, you serve the claimant with your sworn Form 8 and any hearing notice. Follow the court’s directions on how to serve. Keep proof of service.

Do you have to attend a hearing?

Often, yes. The court may set a date to hear your request. Be ready to explain your reason for missing the deadline and your defence. Bring originals of your exhibits.

Do you need to ask for a stay of enforcement?

If collection is underway or likely, ask for a stay in your affidavit. Explain why a pause is fair. The court may grant it until your request is decided.

Do you lose the right to ask if time has passed?

You should act as soon as you learn about the judgment. Delay can hurt your chances. If there was a long delay, explain it with facts and proof.

Do you need a lawyer to file Form 8?

No. You can complete and file it yourself. Still, consider getting legal help if the issues are complex or the amount is large.

Checklist: Before, During, and After the Form 8 – Affidavit to Set Aside Default Judgment or Interim Judgment

Before signing

• Identify the correct court location and file number.
• Get the judgment details: date, amount, and what the judgment says.
• Gather evidence for your reason for not responding or attending.
• Travel records, medical notes, delivery tracking, or proof of address change.
• Copies of emails or letters showing attempts to respond.
• Any notices you received with envelopes showing dates.
• Outline your defence on the merits.
• Contracts, invoices, receipts, photos, messages, or timelines.
• Proof of payment or part payment.
• Proof of goods or services delivered or not delivered.
• Decide if you will ask for a stay of enforcement.
• Note any collection actions, wage garnishment, or bank holds.
• Mark and label your exhibits clearly.
• Use simple labels (Exhibit A, B, C).
• Add brief exhibit captions (e.g., “Receipt dated [date]”).
• Prepare a timeline of key dates.
• When you first learned of the claim or judgment.
• When you tried to respond, what happened?
• Confirm names and addresses for service.
• Check if there is a filing fee and acceptable payment methods.

During signing

• Confirm the court file number, parties’ names, and court location are accurate.
• Confirm the judgment type you seek to set aside (default or interim).
• State precisely what you want the court to do.
• Set aside the judgment and allow you to file a defence.
• Stay enforcement pending the decision.
• Review each paragraph for accuracy and clarity.
• Use facts, not opinions.
• Avoid vague phrases like “I think.”
• Attach exhibits and refer to them by label in the affidavit.
• Number all pages and exhibits.
• Appear before a commissioner of oaths or notary to swear or affirm.
• Bring government-issued ID.
• Sign only in front of the commissioner or notary.
• Get the commissioner’s or notary’s signature, stamp, and date.
• Make copies after it is fully signed and stamped.

After signing

• File the sworn Form 8 with the Small Claims Court that issued the judgment.
• Pay any required filing fee.
• Ask the clerk about scheduling and any hearing date.
• Serve the claimant with your filed Form 8 and any hearing notice.
• Use a permitted service method.
• Keep proof of service.
• File proof of service with the court if required.
• Calendar the hearing date and any deadlines to file a defence if granted.
• Prepare a concise hearing plan.
• One-page summary of your reason for the default and your defence.
• List of exhibits and witnesses.
• Monitor for any enforcement activity.
• If needed, file or renew your request for a stay.
• Store copies of everything in one file.
• Keep the original court-stamped documents safe.

Common Mistakes to Avoid

• Don’t forget to explain why you missed the deadline with dates and proof. A bare statement like “I was busy” is weak. The judge looks for a credible reason, supported by documents.
• Don’t omit your defence on the merits. Saying “I disagree” is not enough. State specific facts that, if true, could change the result. Attach basic evidence.
• Don’t serve improperly or skip service. If the claimant is not served, the court may adjourn or dismiss your request. Follow the court’s service rules and keep proof.
• Don’t alter the affidavit after swearing it. Any change after the oath can invalidate the affidavit. If you find an error, prepare a new affidavit and swear again.
• Don’t delay filing once you learn of the judgment. Delay weakens your position and can increase costs. File as soon as possible and explain any gaps.

What to Do After Filling Out the Form

1. File with the correct Small Claims Court. Bring your sworn Form 8, exhibits, and payment method for any fee. Ask the clerk if you need an appointment or if you can file in person or by mail. Confirm how you will get the hearing date.
2. Serve the claimant promptly. Use a permitted method and include any hearing notice. If a third party must be served, confirm the details with the clerk. Keep detailed proof of service. File proof of service if the court requires it.
3. Request a stay of enforcement if needed. If the claimant is collecting on the judgment, ask the court to pause enforcement. You can include this in your affidavit. If not addressed at filing, ask the clerk how to bring it forward.
4. Prepare for the hearing. Bring a short, organized package: your affidavit, exhibits, timeline, and key points. Be ready to explain two things clearly first: why you missed the deadline or hearing. Second, your defence on the merits. Keep it factual and brief.
5. Know what happens if the court grants your request. The judgment will be set aside. You will get directions on the next steps and timelines. You may be told to file a defence by a set date. Mark that date and meet it. Keep serving and filing as required.
6. Know what happens if the court refuses your request. The judgment stands. You can consider options like payment terms or other relief. Ask the clerk what procedural steps are available. If you want to appeal or review, act quickly and seek advice.
7. Fix errors the right way. If you find a mistake before filing, correct it and re-swear the affidavit. If you find an error after filing, prepare a fresh affidavit or a short supplemental affidavit. Swear it and file it. Serve it on the claimant.
8. Keep records organized. Store stamped copies, proof of service, and hearing notices together. Note all deadlines and set reminders. Bring two extra copies to the hearing.
9. Stay professional in all communications. Keep emails and letters factual and polite. Avoid arguments outside the hearing. Save all correspondence as potential exhibits.
10. Plan your attendance. Arrive early for the hearing with ID and your documents. Check in with the clerk. When called, speak clearly and stick to your affidavit and exhibits.
11. If the matter is reopened, manage the case actively. Exchange documents on time. Attend any settlement discussion or trial. Keep your evidence organized. Update your address with the court if you move.