AMF v GHP, 2022 ABKB 758


6.3: Applications generally
12.61: Appeal from Provincial Court order to Court of Queen’s Bench
12.62: Duty of court clerks
12.63: Transcript
12.68: Evidence

Case Summary

The Appellant appealed the Order of a Provincial Court Judge granted on April 5, 2022 (the “April Order”). She initially sought to introduce new evidence on Appeal but withdrew that Application.

Sidnell J. noted that, per Rule 12.61, an Appeal of a Decision in family matters from the Provincial Court to the Court of King’s Bench required an Appellant to file a Notice of Appeal in Form FL-33 within one month following the date on which the Order being appealed was pronounced. Per Rule 12.63, the Appellant was required to file a transcript of the hearing before the Provincial Court no later than 3 months following the filing of the Notice of Appeal, unless an Order had been made by a Judge of the Court of King’s Bench prior to the expiry of the relevant period. Per Rule 12.62(2), upon receipt of the Notice of Appeal filed under Rule 12.61, the Clerk of the Provincial Court must forward the Order along with documents related to the Order, to the Court of King’s Bench Clerk. Per Rule 12.68, the documents forwarded by the Provincial Court Clerk pursuant to Rule 12.62 and the transcripts of the hearing form the record for the hearing of the Appeal.

The Appellant took umbrage with a January 25, 2022, interim without prejudice parenting Order (“January Order”), however she did not appeal this Order. Counsel for the Appellant argued that on April 5, 2022, he made an oral Application to lift the suspension of the Appellant’s in-person parenting of some of the children under the January Order. Outside of certain questions in oral submissions, the record did not show that any Application was ever made or dismissed. The preamble of the April Order referred to the consent of counsel, however it was not labeled a “Consent Order”. The April Order did not itself mention any Application made by the Appellant to lift the suspension of her in-person parenting time.

Her Ladyship noted that without a written Application, it was not clear what documents the Appellant referred to, which made establishing the Appeal Record more difficult. At the Appeal hearing, counsel for the Appellant referred to the Appellant’s previously filed Affidavits but there was no record to show that they were before the Provincial Court on April 5, 2022. Sidnell J. listed several documents the Provincial Court Clerk had forwarded per Rule 12.68, which became the Appeal Record, and only one of them was an Affidavit from the Appellant. There was no Application to add records to the Appeal Record. Her Ladyship stated that without a written Application, there was nothing to bring to the attention of the Provincial Court what the Appellant thought was important. Sidnell J. further noted that at the Court of King’s Bench, an Application must be brought in accordance with Rule 6.3, and the purpose of giving notice and compliance with Rule 6.3 is to ensure that a Respondent knows of the arguments to be addressed and to allow the Court to properly prepare for the hearing. Ultimately Her Ladyship found that counsel for the Appellant’s submissions at the April 5, 2022, hearing did not constitute an Application and dismissed the Appeal.

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