Ms. Gall and the Respondent were divorced. Ms. Gall passed away approximately two years later, leaving behind a son. Three years after Ms. Gall’s death, the Respondent filed an Application for retroactive and ongoing child support against Ms. Gall’s Estate and sought certain relief on behalf of the child. On the same day, the Estate filed an Application to strike the Divorce Action for long delay.

The Court confirmed that Rules 4.31 and 4.33 apply to Divorce Actions, noting that Part 12 of the Rules applies to proceedings under the Divorce Act. The Court added that Rule 12.3 expressly provides that the other parts of the Rules apply to proceedings and Appeals under Part 12, which includes Rules 4.31 and 4.33.

The Court found that, in this case, there was no basis for the delay Application as there was no outstanding Action to strike. The Judgment in the Divorce Action had already been granted. Therefore, the Court dismissed the Estate’s Application to strike the Divorce Action pursuant to Rule 4.31 or 4.33.

The Estate also claimed that the Respondent lacked standing to apply for relief under the Wills and Succession Act, SA 2010, c W-12.2(the “Act”) on behalf of the child. The Estate argued that, among other things, the Respondent had not filed the required Affidavit pursuant to Rule 2.14 to become a self-appointed litigation representative.

The Court disposed of this argument, stating that the Respondent, who was the child’s father, had standing to make an Application for relief, as s.90 of the Act permits an Application to be made on behalf of a family member who is under 18 years of age by that family member’s parent or guardian.