Druet v. Druet, (2002) 253 N.B.R.(2d) 317 (CA)

• Judge: Drapeau, Larlee and Deschênes, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 31, 2002
• Jurisdiction: New Brunswick
• Citations: (2002), 253 N.B.R.(2d) 317 (CA);2002 NBCA 88

Druet v. Druet (2002), 253 N.B.R.(2d) 317 (CA);

    253 R.N.-B.(2e) 317; 660 A.P.R. 317

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.B.R.(2d) TBEd. DE.003

Cheryl Ann Druet (respondent/appellant) v. Leslie Trenton Joseph Druet (petitioner/respondent)

(112/01/CA; 2002 NBCA 88)

Indexed As: Druet v. Druet

New Brunswick Court of Appeal

Drapeau, Larlee and Deschênes, JJ.A.

October 31, 2002.

Summary:

A husband petitioned for divorce. The issues to be decided included spousal support and the division of property.

The New Brunswick Court of Queen's Bench, Family Division, in a deci­sion report­ed at 239 N.B.R.(2d) 241; 619 A.P.R. 241, granted the divorce and deter­mined the is­sues accordingly. The wife appealed. The hus­band cross-appealed, as­serting that the court had lacked jurisdiction to grant spousal support because the wife's claim had been advanced by way of an answer, and not a coun­terpetition as required by rule 72.10 of the Rules of Court. The wife abandoned the appeal.

The New Brunswick Court of Appeal dis­missed the cross-appeal.

Family Law - Topic 4139

Divorce - Practice - General - Counter­petition - A husband petitioned for divorce - The wife served an "Answer" on the hus­band claiming spousal support - The hus­band appealed the resulting support order, asserting that the trial judge had lacked jurisdiction because the wife's claim had not been advanced by way of counter­peti­tion (Rules of Court, 72.10) - The New Brunswick Court of Appeal rejected the assertion - The counterpetition for spousal support was not an "originating process" under rule 1.04 - The wife's failure to advance her claim by way of counterpeti­tion was a procedural error that should be treated as a mere irregularity - That irregu­larity did not render the proceedings a nullity - Furthermore, it was in the inter­ests of justice that her "Answer" be acted upon by the trial judge as if it were a "counterpetition" - Moreover, the examin­ation for discovery constituted "a further step in the proceedings" within the mean­ing of rule 2.03 - As a result, the trial judge was not at liberty to allow the hus­band's tardy objection.

Practice - Topic 9

General principles and definitions - Dis­pensing with compliance with rules - [See Family Law - Topic 4139 ].

Practice - Topic 2391

Writ of summons, endorsements, originat­ing summons and originating notices - Nullities and irregularities - Time for objection - [See Family Law - Topic 4139 ].

Practice - Topic 2393

Writ of summons, endorsements, originat­ing summons and originating notices - Nullities and irregularities - What consti­tutes an irregularity - [See Family Law - Topic 4139 ].

Cases Noticed:

Ward v. Ward (1985), 66 N.B.R.(2d) 44; 169 A.P.R. 44 (Q.B.), refd to. [para. 6].

Canada Packers Poultry v. United Food and Commercial Workers International Union, Local 1183 (1990), 110 N.B.R.(2d) 284; 276 A.P.R. 284 (C.A.), refd to. [para. 6].

T & D Contracting Co. v. J.M. Construc­tion Ltd. (1978-79), 7 C.P.C. 278 (Ont. H.C.), refd to. [para. 7].

Statutes Noticed:

Rules of Court (N.B.), rule 72.10(1) [para. 1].

Counsel:

Cheryl Ann Druet, appeared in person, for the appellant;

Francis E. Atkinson, Q.C., for the respon­dent.

This cross-appeal was heard on October 31, 2002, by Drapeau, Larlee and Deschênes, JJ.A., of the New Brunswick Court of Ap­peal. Drapeau, J.A., delivered the follow­ing judgment orally for the court on the same date.