Integral to any legal proceedings is notice. Divorce and family law matters are no different. In September I dealt with a matter that not only highlighted the importance of procedural fairness to all parties involved, however, it also highlighted how one piece of legislation can be utilized to advance the process under a different piece of legislation. In this case this pitted the Divorce Act against the Immigration & Refugee Protection Act Regulations.
I was retained in early September by a client who was a Permanent Resident to Canada and had arrived to Canada based on a marriage sponsorship as a result of his marriage to a Canadian National. The stories differ at this point but the crux is the marriage failed. Very shortly after the dissolution of the relationship divorce proceedings were commenced and my client was served with a Statement of Claim for Divorce by way of email. Particularly interesting was the pleading of "mental and physical cruelty" on the part of my client. This allegation allows for an expeditious divorce.
Serving via email is not the normal procedure under the Alberta Rules of Court and the opposing party required a Substitutional Service Order to have the documents served via email. My client did not use the email address that he was served at thus had no notice of the action that was commenced. The opposing party moved swiftly and noted my client in default and moved to have the divorce finalized. All this because of the bald accusation of mental and physical cruelty.
The opposing party went one step further and provided the filed court documents, which my client did not even know existed, to Citizenship & Immigration Canada (CIC) to further a claim of marriage fraud. Purporting that my client had entered into the marriage for the purposes of obtaining entry into Canada. The authority of CIC to investigate comes from section 72.1 of the regulations of the Immigration & Refugee Protection Act. After the investigation was launched by CIC my client received a letter which he was asked to come for an interview with CIC. At this point he began to search his previous email to determine if he had missed anything. He had. He had been divorced without even knowing it.
He retained me and we began the process of allowing him to defend himself against the Divorce and particularly these grounds of mental and physical cruelty. Counsel, to my surprise, refused to agree to set aside the Noting in Default and we were forced to proceed to chambers to have the matter heard.
The matter was ultimately heard by Court of Queen's Bench Justice G.H. Poelman, and relying on Rule 9.15(3) of the Alberta Rules of Court and his own decision of Palin v. Duxbury, wherein he sets out the test for having a default judgment set aside, our application was allowed and our client was granted the opportunity to file a defense to the action.
Poelman J. noted that all of the steps taken by the Plaintiff to date had been done with no real notice to the Defendant. A cornerstone of our legal system is that all parties have notice and an opportunity to be heard.
Opposing counsel had alluded to the matter needing to go to the Court of Appeal. The 30 days to file an appeal has not lapsed...yet.
I was retained in early September by a client who was a Permanent Resident to Canada and had arrived to Canada based on a marriage sponsorship as a result of his marriage to a Canadian National. The stories differ at this point but the crux is the marriage failed. Very shortly after the dissolution of the relationship divorce proceedings were commenced and my client was served with a Statement of Claim for Divorce by way of email. Particularly interesting was the pleading of "mental and physical cruelty" on the part of my client. This allegation allows for an expeditious divorce.
Serving via email is not the normal procedure under the Alberta Rules of Court and the opposing party required a Substitutional Service Order to have the documents served via email. My client did not use the email address that he was served at thus had no notice of the action that was commenced. The opposing party moved swiftly and noted my client in default and moved to have the divorce finalized. All this because of the bald accusation of mental and physical cruelty.
The opposing party went one step further and provided the filed court documents, which my client did not even know existed, to Citizenship & Immigration Canada (CIC) to further a claim of marriage fraud. Purporting that my client had entered into the marriage for the purposes of obtaining entry into Canada. The authority of CIC to investigate comes from section 72.1 of the regulations of the Immigration & Refugee Protection Act. After the investigation was launched by CIC my client received a letter which he was asked to come for an interview with CIC. At this point he began to search his previous email to determine if he had missed anything. He had. He had been divorced without even knowing it.
He retained me and we began the process of allowing him to defend himself against the Divorce and particularly these grounds of mental and physical cruelty. Counsel, to my surprise, refused to agree to set aside the Noting in Default and we were forced to proceed to chambers to have the matter heard.
The matter was ultimately heard by Court of Queen's Bench Justice G.H. Poelman, and relying on Rule 9.15(3) of the Alberta Rules of Court and his own decision of Palin v. Duxbury, wherein he sets out the test for having a default judgment set aside, our application was allowed and our client was granted the opportunity to file a defense to the action.
Poelman J. noted that all of the steps taken by the Plaintiff to date had been done with no real notice to the Defendant. A cornerstone of our legal system is that all parties have notice and an opportunity to be heard.
Opposing counsel had alluded to the matter needing to go to the Court of Appeal. The 30 days to file an appeal has not lapsed...yet.