12.44: Application within course of proceeding
12.51: Appearance before the Court

Case Summary

A Justice in Chambers made a final Order respecting the parenting and support of the parties’ child based on conflicting Affidavits without the Appellant being present. Both parties had anticipated an interim Order. However, the Justice was disinclined to make any Order on an interim basis because of the acrimony between the parties.

The Appellant, dissatisfied with the Order, appealed to the Court of Appeal. Slatter J.A. observed that, while Rule 12.51 was broadly worded to ensure that the Court had wide jurisdiction in family matters, it appeared in a Division under the Family Rules headed “Trial”. Further, Rule 12.44 confirmed that the ordinary Rules on Interlocutory Applications applied to interim family Applications. Justice Slatter noted that final Orders were rarely made in Chambers based on conflicting Affidavits, and were ordinarily made after Trial or settlement of the dispute.

Justice Slatter, for the Court, held that in the circumstances there was no reason why an interim Order should not have been granted, and that it was open to either party to obtain a different permanent Order through the Trial process if they so wished. Justice Slatter opined that an interim Order in a family matter could be varied by the Court if there was a change in circumstances, and after Trial it was open to the Trial Judge to make a different Order and vary the interim terms from the previous Order. The Appeal was allowed in part and the Decision of the Chambers Justice was confirmed as an interim Order only.

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