This was an Appeal involving the Appellant, Donald Arnston, and the Respondent, Viva Arnston, who ended their 30-year marriage in 2011. Following a Statement of Claim for divorce and division of matrimonial property filed by Ms. Arnston, the parties engaged in extensive litigation. This led to a global settlement agreement in March 2016. However, various matters remained unresolved, prompting Mr. Arnston to seek procedural direction from the family docket Court in 2023.

On February 22, 2023, Ms. Arnston filed a Discontinuance of her Claim, which her son Mikkel, who is a lawyer, communicated to Mr. Arnston’s counsel, suggesting the Docket Application was moot. Mr. Arnston then applied to have the Discontinuance set aside. The Chambers Judge partially set aside the Discontinuance only to allow for the submission of a desk Divorce Application, citing Rule 4.36(1). Mr. Arnston appealed this Decision.

The Court of Appeal reviewed whether the Chambers Judge erred in determining that there were no outstanding issues in the matrimonial litigation due to the 2016 settlement agreement, whether filing the Discontinuance constituted an abuse of process, and whether Rule 4.36(1) or Rule 4.36(2) governed the Discontinuance given that a Trial date had been set but was adjourned.

The Court concluded that there were still outstanding issues related to the matrimonial litigation, and the Chambers Judge had erred in determining that these issues were solely related to the settlement agreement rather than the matrimonial litigation. Additionally, the Court held that filing the discontinuance during the adjournment of Mr. Arnston’s family Docket Application was an abuse of process intended to prevent him from obtaining procedural direction from the Court. The Court also noted that Rule 4.36(2) should apply in circumstances where a Trial date has been set but the trial has been adjourned or not taken place.

Ultimately, the Court of Appeal allowed the Appeal, set aside the Discontinuance, and remitted the matter to the lower Court for further proceedings, ensuring Mr. Arnston could seek the enforcement of the settlement agreement within the matrimonial litigation.