BEAUCHESNE v BEAUCHESNE, 2012 ABQB 308
1.2: Purpose and intention of these rules
1.3: General authority of the Court to provide remedies
1.4: Procedural orders
1.5: Rule contravention, non-compliance and irregularities
1.7: Interpreting these rules
1.9: Conflicts and inconsistencies with enactments
12.44: Application within course of proceeding
12.45: Application after order or judgment under Divorce Act (Canada)
12.46: Provisional order to vary a support order under Divorce Act (Canada)
12.47: Confirmation hearing
Following the parties’ divorce, the husband moved to the United Kingdom, and the Alberta child support Order was registered in the United Kingdom for enforcement purposes. The Applicant husband obtained an ex parte Order from the English Court which purported to vary the previous child support Order granted in Alberta. Justice Ross considered whether the International Support Orders Act, SA 2000, c I-3.5 (“ISO Act”) could be used to bring a UK provisional order before an Alberta Court as a variation application under the Divorce Act, RSC 1985, c 3 (2nd supp).
Ross J. considered the relevant provisions of the Divorce Act, the ISO Act and the Judicature Act, RSA 2000, c J-2. Ross J. also considered Rule 12.45, which provides that an Application to vary, suspend or rescind an Order of the Court in a proceeding under the Divorce Act must be made by filing a family Application in Form FL-18 accompanied with an Affidavit in accordance with Rule 12.44(1)(a). Ross J. also noted the relevant time frames within which these Applications and Affidavits must be served by both parties to an Action. Specifically, Rules 12.46 and 12.47 are the Rules used to address the procedure to be followed for provisional Orders made under the Divorce Act.
Justice Ross also referenced Rules 1.2, 1.3, 1.4, 1.5, 1.7 and 1.9 in order to exemplify the general purpose of the , the powers the Court has to implement these Rules in order to advance their purpose and to illustrate the approach and interpretation that is to be taken when applying the . Her Ladyship reviewed previous authority which provided that a Province has no authority to expose a divorce Order to variation under provincial legislation, as the Divorce Act is a Federal Act. However, Ross J. also stated that the Divorce Act permits a provincial rule-making body to make rules applicable to any proceeding under the Divorce Act in a Court in the Province. Further, the provide for a broad approach to interpretation and must be read in light of the purpose and intention set out in .
Ross J. held that the provide that the Court has broad power to cure contravention, noncompliance or irregularity where it is in the overall interest of justice to do so, and where it would not cause irreparable harm to any party. Justice Ross concluded that the Divorce Act, when read with the , allowed the Court to hear the variation Application, and that to do so would be in keeping with the purpose of the Rules. Ross J. recalculated the husband’s income accordingly and directed the Designated Authority in England to prepare an Order that reflected Her Ladyship’s analysis.View CanLII Details