4.22: Considerations for security for costs order
4.33: Dismissal for long delay

Case Summary

When faced with an Application for Spousal Support and an Application to Set Aside a Cohabitation Agreement by the Defendant/Respondent, the Plaintiff/Applicant applied to dismiss or strike pleadings of the Defendant/Respondent on the basis of long delay pursuant to Rule 4.33, or, in the alternative, Security for Costs under Rule 4.22.

Rooke ACJ began with an analysis of Rule 4.33. His Lordship noted that, pursuant to Rule 4.33, if three or more years had passed without a significant advance in the action, the Court, on Application, must dismiss the action. Rooke ACJ also noted that it followed that if three or more years had passed, any supplication under Rule 4.33 also must be dismissed. The Defendant filed her Statement of Defence and Counterclaim on May 21, 2015. On December 1, 2017, the Defendant/Respondent filed her applications for Spousal Support and to set aside the Cohabitation Agreement with leave from Justice Gill on November 27, 2017. Rooke ACJ found that this was approximately two years and six months after the Defendant/Respondent filed her Statement of Defence and dismissed the Plaintiff/Applicant’s Application under Rule 4.33 as three years had not passed.

Rooke ACJ then turned to the issue of Security for Costs. His Lordship simply noted that the evidence and law was strong on the merits of granting Security for Costs. Rooke ACJ ordered Security of Costs of $3,000, offset by $1,350 for the Defendant’s success on the Rule 4.33 Application.

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