BREITKREUZ v BREITKREUZ, 2021 ABQB 339
9.15: Setting aside, varying and discharging judgments and orders
10.52: Declaration of civil contempt
11.28: Substitutional service
In the context of divorce and division of matrimonial property proceedings, the Applicant applied pursuant to Rule 9.15 to set aside several Orders that were issued in 2019. The Applicant argued that he did not receive notice of the Applications that resulted in the Orders.
In 2006, the Respondent obtained an Order for partition and sale of the matrimonial home. No steps were taken by the Respondent to follow through with this Order. In 2019, the Respondent sought to revisit the issue of spousal support, and therefore filed a Notice to Disclose Application. A process server was unable to effect personal service on the Applicant. The Respondent obtained an Order allowing substitutional service pursuant to Rule 11.28. Justice Neilson noted that Rule 11.28 is not a formality, and it is crucial that the Rule’s requirements be met.
All further service was accomplished by posting the documents in a sealed envelope on the gate of the Applicant’s residence, in accordance with the substitutional service Order. An Order was granted requiring the Applicant to provide complete financial disclosure, failing which the Applicant was required to attend Court personally on a specified date to show cause why he should not be held in contempt. The Applicant did not provide financial disclosure and did not appear, so he was held in contempt and a warrant was issued accordingly.
A further Application was brought by the Respondent (and served substitutionally). An Order was granted regarding the matrimonial home and altering the amount of spousal support payments.
The Applicant was detained when attempting to leave the country on an international flight pursuant to the warrant. In these proceedings, the Applicant argued that he was unaware of any of the aforementioned proceedings, did not receive any correspondence from the Respondent, and did not receive any of the documents served substitutionally by the process server. Based on the evidence, Justice Neilson was not persuaded that it was possible for the Applicant to have missed the substitutionally served documents.
The Applicant argued that given the serious consequences of the civil contempt Order, the underlying documents ought to have been served personally pursuant to Rule 10.52. The Court observed, and the Respondent conceded, that since the Applicant was now before the Court, the contempt issue was moot.
Justice Neilson held that the Orders which were not rendered moot were still in effect, thus dismissing the Application to set them aside.View CanLII Details