NAFIE v BADAWY, 2015 ABCA 36
ROWBOTHAM, O'FERRALL AND VELDHUIS JJA
1.3: General authority of the Court to provide remedies
4.14: Authority of case management judge
6.3: Applications generally
11.30: Proving service of documents
13.1: When one judge may act in place of or replace another
14.73: Procedural powers
The Appellant husband and Respondent wife had married in Egypt in 2000. After their wedding they lived in Canada and Saudi Arabia as a married couple for more than a decade before the wife sought and was granted a divorce in Alberta. The husband appealed, claiming that the Chambers Judge erred in law in concluding that Alberta Courts had jurisdiction to grant the Divorce. He sought to have the wife’s Statement of Claim for Divorce set aside.
The Court of Appeal determined that it had jurisdiction to set aside the Statement of Claim for Divorce. However, the Court noted that setting aside the Statement of Claim for Divorce and Division of Matrimonial Property would also lead to setting aside associated Interlocutory Orders. The Court stated that, on these unique facts, it would take the extraordinary approach of exercising its inherent parens patriae and nunc pro tunc jurisdiction to give effect to a select number of the Interlocutory Orders as of the date they were made. In discussing its jurisdiction, the Court cited the Judicature Act, RSA 2000, c J-2 as well as Rules 1.3 and 14.73, and noted that courts have the inherent jurisdiction to control their own processes.
The Court considered some of the procedural difficulties within the Action. With respect to some of the problems with the service of documents, the Court cited Rule 6.3(3) and stated that:
Procedural rules governing service are not a sword to be used to stall proceedings or alter the priority in which applications are heard. They are a shield to ensure fairness.
The Court noted that in this case, Affidavits of Service and proof of service under Rule 11.30 were used inconsistently, and the parties disputed service even where Affidavits of Service existed. The Court continued that it was simply impossible in some instances to determine from the record whether all or part of a document was served, and whether it was served within the required time period. The Court stated that parties are responsible for service and proof of it. Rule 11.30(1) clearly provided that an Application should be adjourned if proof was lacking and service was challenged.
The Court noted that the parties had leveraged delays in Case Management in order to gain an advantage. Before the first case management meeting, the husband had removed a jointly owned vehicle, thereby stranding the wife and the children. He then insisted that the wife was required to adhere to Rule 4.14(2) which stipulated that such matters should be addressed before a Case Management Judge. The wife secured the return of the car through an Order outside of Case Management. The Court of Appeal observed that, pursuant to Rule 4.14(2), the Case Management Judge “must hear every application filed with respect to the action …”. However, the Court held that the Order for the return of the vehicle was reasonable pursuant to Rule 13.1 which allows any Judge to act when another is unavailable.
The Court granted the husband’s Appeal, setting aside the Statement of Claim for divorce on the basis that the wife was not ordinarily resident in Alberta for at least one year before the Statement of Claim was filed. However, the Court noted that a fresh Claim may be appropriate in the circumstances.View CanLII Details