9.15: Setting aside, varying and discharging judgments and orders

Case Summary

Following the commencement of an Action for child and spousal support by the Respondent, Ms. Wilson, against the Appellant, Mr. Wruth (the “Family Law Action”), Mr. Wruth caused his company to commence an Action against Ms. Wilson for allegedly taking monies from the company in order to pay her counsel in the Family Law Action (the “Theft Action”). A Chambers Judge ordered the payment of spousal support and stayed the theft Action upon Ms. Wilson applying to consolidate both Actions. The Actions were not consolidated. Mr. Wruth appealed the Chambers Judge’s Order, without applying to have the Stay lifted at the Court of Queen’s Bench.

The Appellant argued that the remedy of the Stay was not sought by any party and thus no party had an opportunity to respond to that issue and to offer evidence by way of Affidavit or otherwise.

The Court held that the Chambers Judge’s Order should have been challenged under Rule 9.15, which allows the Court of Queen’s Bench to vary or discharge an Order which was made without notice. The Court noted that such an Application could have been brought and heard in a matter of weeks, rather than the months that it took to hear the Appeal, and that “Appeals should be discouraged where there is an available remedy in the Court of Queen’s Bench”. The Court held that an Appeal of the Order was not the appropriate mechanism and dismissed the Appeal as the Appellant had not “availed himself of the opportunity to apply in Queen’s Bench to have the stay lifted”.

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