1.5: Rule contravention, non-compliance and irregularities
3.2: How to start an action
3.8: Originating applications and associated evidence

Case Summary

The Plaintiff brought an Application upon receipt of a filed Application and Affidavit (the “Underlying Application”) corresponding to a Fiat relating to the Underlying Application, to: (1) set aside the Fiat; (2) require the Defendant to file the same Application using a different form; (3) and for any new Application to be dated on the actual date of any such future filing. The Defendant brought a cross Application for an Order that the Fiat backdating the Underlying Application in the original form be validated (the “Cross Application”). The Underlying Application was required to be filed within the one-year period (the “One-Year Period”).  set out in Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).

The Defendant had requested the Fiat for the Underlying Application under the Hague Convention which was granted.

Among other things, the Court noted how Practice Note 6 indicates that the party seeking an Order directing the return of the child must file an Originating Application (Form 7) pursuant to Rule 3.8 and a supporting Affidavit. The Plaintiff advanced an argument setting out that Practice Note 6 was directive and that any corrective discretion given to a Justice pursuant to Rule 1.5 could not backdate the date of the actual filing of the Underlying Application, as to do so would have the effect of prejudicing the Plaintiff. Conversely, the Defendant argued that Rule 1.5 could be used to remedy any shortfall or noncompliance with the Rules, noting these were not circumstances where the Underlying Application or its contents were unknown to the Plaintiff until after the One-Year Period had expired, and therefore no one had been prejudiced.

The Court set out Rule 3.2(6), which sets out how to bring an Action. The Court noted that the Court of Appeal had indicated that Practice Notes do not have the full force of law but are rather informational statements for guidance and that Courts should always attempt to support them as they are set out to facilitate the proper regulation of litigation. The Court additionally noted that the directive words in Practice Notes are often overcome by the use of Fiats and are distinguishable from circumstances where there is express directive language in legislation. Accordingly, the Court found that it was able to relieve against the incorrect form.

Among other things, the Court acknowledged that although the Defendant had sought the Fiat, the Defendant was in error by failing to (1) provide a complete history; (2) clarify that the notice to the Plaintiff had been provided the same morning the Fiat was sought; (3) identify or highlight the issue of the form of the Application; and (4) explain the effect of the One-Year Period.

The Court additionally noted that the Court had wrongly assumed that the Plaintiff consented to the Fiat from the brief introduction provided by the Defendant, which included the fact that a hearing had been set in February and that notice had been provided. The Court accordingly found that the Defendant had not made an intentional misrepresentation, such that the administration of justice should not support consideration of curing the non-compliance.

The Court found that the curative action would not be prejudicial or cause irreparable harm such that it would be prevented under Rule 1.5(4)(a), and the curative powers of Rule 1.5 could be applied. The Court accordingly granted the Defendant’s Cross Application.

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