14.4: Right to appeal
14.49: Failure to respond
14.5: Appeals only with permission

Case Summary

The Applicant applied for a Stay pending Appeal with respect to a Decision by the Chambers Judge which (1) dealt with the proper jurisdiction of the parties’ divorce proceedings and granted leave to the Respondent to further apply for severance of certain corollary relief claims from the overall divorce Action; and (2) granted Costs in favour of the Respondent. The Applicant also sought permission to Appeal with respect to the Chambers Judge’s related refusal to grant an adjournment.

As a starting point, Justice Grosse noted that the Applicant did not require permission to Appeal the Order on jurisdiction or the Costs Award, per Rules 14.4(1) and 14.5(1)(e), but that permission to Appeal was required in respect of the Decision refusing the adjournment, per Rule 14.5(1)(b).

Justice Grosse also observed that the Respondent did not file materials in response to the Applications, based on an apparent error by counsel with respect to filing requirements. Notwithstanding this omission, the Court exercised its discretion under Rule 14.49 and permitted the Respondent to make brief oral submissions.

With respect to the Applicant’s Application for permission to Appeal the refusal of the adjournment, the Court cited the test which must be satisfied, which requires that: (1) there be a serious question of general importance; (2) there be a reasonable chance of success on Appeal; and (3) the Appeal will not unduly hinder the progress of the Action or cause undue prejudice without any proportionate benefit.

Justice Grosse held that the proposed Appeal did not raise a question of general importance, and that this requirement was not relaxed because other issues are under Appeal as of right. Permission to Appeal the refusal of the adjournment request was therefore denied.

In regard to the Stay Applications, the Court noted that the Respondent did not oppose the Stay and was in fact willing to undertake not to obtain a divorce Judgment in Canada until after the Hearing of the Appeal on its merits. The Court therefore granted the Stay Applications.

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