MACDONALD v KING, 2021 ABCA 149
14.5: Appeals only with permission
The Applicant and Respondent were former spouses whose family property was divided by a Consent Judgment entered in the Court of Queen’s Bench. The Applicant sought permission to appeal the Consent Judgment, pursuant to Rule 14.5(1)(d), on the basis that her consent had been obtained through duress, intimidation and coercion. The Applicant also sought a stay of the Consent Judgment pending Appeal.
The parties presented very different accounts of the relevant facts. The Applicant alleged that, while she had initially consented to the Consent Judgment’s terms, that consent was promptly and clearly revoked. Further, she maintained that while the Respondent had assured her that the Consent Judgment had been destroyed, she later learned that it had been submitted to the Court and granted. She stated that she was not served with any of the originating documents until after the Consent Judgment had been entered.
The Court of Appeal did not make any finding as to whether the Applicant had revoked her consent. However, it did find that the Applicant had not had the benefit of legal advice and did not receive financial disclosure prior to execution of the Consent Judgment. The Court also found that the Consent Judgment resulted in a reversion of between 80% and 90% of the matrimonial property to the Respondent.
The Court noted that the test for granting permission to appeal pursuant to Rule 14.5 is stringent and requires the Applicant to demonstrate that the Appeal raises an important question of law or precedent, has a reasonable prospect of success, and the resulting delay will not unduly hinder the progress of the Action or cause undue prejudice to the parties. The Court further noted that the proposed Appeal’s preferability as a remedy was not to be considered.
On the facts, the Court concluded that there were serious issues to be tried, that the Applicant had a reasonable prospect of success, and that permission to Appeal was otherwise appropriate. The Court reached this conclusion and granted the Application, notwithstanding that the Applicant could alternatively have pursued an Application to set aside the Consent Judgment. In addition, the Court held that in the circumstances, it was appropriate to grant a stay pending Appeal.View CanLII Details