HAMILTON v LEACH, 2013 ABCA 423
CÔTÉ, MCDONALD AND BIELBY JJA
6.3: Applications generally
6.6: Response and reply to application
The Parties were parents to a four-year old child. A number of Orders were granted in 2011 and 2012 governing parenting and access, which also required the Appellant father to provide his last three Notices of Assessment. In September 2012, the mother filed a Claim pursuant to the Family Law Act, SA 2003, c F-4.5, to vary the existing parenting Orders and for a finding that the father was in contempt for not providing his Notices of Assessment. The father subsequently filed a Claim, pursuant to the Family Law Act, SA 2003, c F-4.5, requesting variations in parenting and access. Both Applications were heard on March 12, 2013. The Chambers Judge denied the father’s requested parenting arrangement. The terms of the existing parenting Orders otherwise mainly remained unchanged, although the Chambers Judge ordered the father to pay retroactive and ongoing child support.
The Appellant father appealed and asked the Court to quash the Order of the Chambers Judge, reinstate the previous Orders and remit the matter to the Court of Queen’s Bench for an expedited hearing. The father argued that the Chambers Judge did not properly apply principles of law with respect to parenting and child support Orders, and that the reasons of the Chambers Judge warranted a review by the Court of Appeal. One of the arguments made by the Appellant father was that the mother’s Reply Affidavit filed in respect of her Application at the Court of Queen’s Bench raised new issues and allegations that he was not entitled to reply to under Rules 6.3, 6.6(1) and 6.6(2). The Chambers Judge referred to the fact that the father did not deny some of the mother’s allegations in his Decision. The Appellant father argued that he had no opportunity to meet the case against him.
The Court held that the Decision of the Chambers Judge was deserving of considerable deference because the matters dealt with therein were fact-based and discretionary. The Court held that the Appellant father’s argument was moot. The Appellant father brought his own Cross-Application in January, and could have filed an Affidavit in that matter. Further, the Appellant father never sought leave from the Chambers Judge to file another Affidavit. As such, the Court held that the Appellant father was prepared to proceed before the Chambers Judge on the record as it stood then and, as such, there was no basis to warrant Appellate intervention. The Appeal was dismissed.View CanLII Details