1.4: Procedural orders
4.36: Discontinuance of claim

Case Summary

Over a decade ago, Plaintiff had filed a Statement of Claim for divorce and division of matrimonial property. The Defendant had filed a Statement of Defence agreeing to a Divorce Judgment but contested the parenting, child and spousal support, and the division of matrimonial property as proposed by the Plaintiff.

In 2023, the Plaintiff filed a Discontinuance of Claim on the basis that the Parties had settled the Action (the “Discontinuance”). The Defendant applied to set aside the Discontinuance and sought leave to file a Counterclaim because certain issues remained outstanding in the Action.

Justice Harris found that when the Parties agreed to settle their matter, their intention was to execute discontinuances and settle all outstanding issues subject to submitting an uncontested Desk Divorce Application for Divorce Judgment. Other than the submission of the uncontested Desk Divorce Application, there were no outstanding issues between the Parties.

A Plaintiff can, as of right, discontinue an Action under Rule 4.36(1) anytime before a Trial date is set. Under Rule 4.36(2)(a), a Plaintiff can file a discontinuance pursuant to a settlement agreement even after a Trial date has been set if the Parties consent. Justice Harris wanted to give effect to the settlement reached by the Parties and allow them to finalize their divorce. The outstanding question before her was whether the Discontinuance would undermine the issue of divorce.

Justice Harris found that, notwithstanding the wording of Rule 4.36, the Court had jurisdiction to preclude the filing of a discontinuance of Action if the discontinuance was “obstructive, abusive, or unfair”. Nevertheless, she held that the Defendant’s interest in obtaining a Divorce Judgment could be satisfied without unconditionally setting aside the Plaintiff’s Discontinuance. Justice Harris relied on Rules 1.4(2)(b) and (c), which are the foundational Rules bestowing Courts with jurisdiction to set aside a process or pronounce Orders in respect of an Action, to find that a conditional set aside was more appropriate in the circumstances.  Accordingly, Harris J. set aside the Discontinuance for the limited purpose of allowing the Parties to submit a Desk Divorce Application.

Given that the Discontinuance was set aside for a limited purpose, the Court did not address the Defendant’s Application for leave to file a Counterclaim

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