BROWN v BROWN, 2012 ABQB 214


9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Applicant sought an Order to set aside a previous Order that gave her ex-spouse (the Respondent) leave to make an Application to vary the existing spousal support Order. The need for leave existed because of a prior Order that indicated, “[n]either party is entitled to bring any further applications before the Court without leave.” The Order granting leave was granted in the absence of the Applicant.

There was also an existing Order that allowed for Notice of an Application to be served on the respective parties’ residences by registered mail. The Applicant was served in the manner mandated. However, the Applicant maintained that Notice of the Application was not properly served on her. The Applicant swore an Affidavit indicating that the Respondent knew she was away and took advantage of this absence.

The Court noted that pursuant to Rule 9.15 it “clearly had jurisdiction to revisit an order granted in the absence of the other party.” It was determined that Ms. Brown did not have sufficient notice of the Application, despite having been served Notice of the Application pursuant to the previous Order. Given the history of the matter, it was found that had the Applicant been aware of the Application, she would have attended in opposition.

The Court indicated that the purpose of the Order mandating that leave be sought before bringing an Application was intended to allow the Court to act as a gatekeeper, to prevent unnecessary and frivolous Applications. 

In this case, the Court saw no reason to treat a leave Application any different than an Application for leave to Appeal under the Rules of Court. It was then noted that “a reasonably arguable case” is required when requesting leave to the Court of Appeal. The Court then analysed whether or not the Respondent’s Spousal Support Review Application was reasonably arguable. Ultimately, the Order granting the Respondent leave was stayed. It was stayed pending the delivery of specified disclosure that would help determine whether or not the Respondent’s request for leave was reasonably arguable.       


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