9.15: Setting aside, varying and discharging judgments and orders

Case Summary

The Appellant sought to Appeal a divorce Judgment and corollary relief Order. The Affidavit of Service on file reflected that, upon being served with the Statement of Claim in the divorce proceeding, the Appellant “promptly tore it up”. She was then Noted in Default and Judgment was granted against her.

The Appellant applied in Family Chambers to set aside the Noting in Default and Judgment, as well as for a Stay of the Judgment pending Appeal, pursuant to Rule 9.15 of the Rules. As her primary argument, she claimed lack of proper notice. That Application was dismissed on the basis that this Appeal was pending, but stayed the Judgment pending outcome of the Appeal.

The Court noted that Family Chambers would have been the more appropriate forum to consider the Appeal, stating that challenges to ex parte or default Orders must be made under Rule 9.15 to the Court of King’s Bench, not the Court of Appeal. The Court noted this was largely preferable due to the increased cost and complexity of a hearing at the Court of Appeal.

Further, both parties sought to rely on evidence which had been entered for the Chambers Hearing, but which was not before the Court of first instance. McCarthy J. noted that an Appeal Court is not the preferable forum for the initial assessment of evidence.

The Appeal was therefore dismissed, but the Court extended the stay granted by the Chambers Justice to allow the parties to take the necessary steps to resolve their differences with the Court of King’s Bench.

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