ELEMEN v CARBONEL, 2012 ABQB 674
1.5: Rule contravention, non-compliance and irregularities
11.25: Real and substantial connection
Elemem sought to have Carbonel’s Statement of Defence struck as it contained untrue statements. Previously, Elemen had served a Statement of Claim for divorce and corollary relief upon Carbonel who resided in the Philippines. However, Elemen had not applied to the Court for leave to serve the Statement of Claim outside of Canada.
The Court held that as both Parties were unrepresented and there was no irreparable harm to either Party, Rule 1.5 could be applied to correct the deficient service. The Court also applied Rule 1.5 to strike the portions of the Pleadings that dealt with corollary relief as the Philippines was the forum conveniens.
The Application to strike the Statement of Defence was not granted, as the appropriate process when the Pleadings conflict is to proceed to Trial, not to strike the Pleadings. The Court granted the divorce as there was no dispute regarding the facts that gave rise to the granting of a divorce.View CanLII Details