Loewen v. Payne, (1983) 22 Man.R.(2d) 14 (CA)

• Judge: Hall, O'Sullivan and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 20, 1982
• Jurisdiction: Manitoba
• Citations: (1983), 22 Man.R.(2d) 14 (CA)

Loewen v. Payne (1983), 22 Man.R.(2d) 14 (CA)

MLB headnote and full text

Loewen v. Payne

(Suit No. 342/82)

Indexed As: Loewen v. Payne

Manitoba Court of Appeal

Hall, O'Sullivan and Huband, JJ.A.

April 29, 1983.

Summary:

A mother applied for a filiation order against the putative father of her illegitimate child. The father had left Manitoba and was now a resident of Ontario. No notice of the proceedings was served upon the father.

The Manitoba Provincial Court, Family Division, in a decision unreported in this series of reports, dismissed the application on the ground that the court lacked jurisdiction to make a provisional order in the absence of service upon the father. The mother appealed.

The Manitoba Court of Appeal allowed the appeal, holding that service of notice on the father was unnecessary; the court remitted the matter back to the provincial court for consideration on the merits.

Infants - Topic 2568

Illegitimate children - Support - Practice - Notice - Under the Child Welfare Act, service of notice of proceedings is a condition precedent to a filiation order - Under the Reciprocal Enforcement of Maintenance Orders Act, a provisional maintenance order may be granted in favour of a dependant against a resident of a reciprocating state without service of notice of proceedings - The Manitoba Court of Appeal held that a Provincial Court judge has jurisdiction to make a provisional filiation order of support, without service on the putative father in Ontario, following an application by the child's mother.

Words and Phrases

Dependant - The Manitoba Court of Appeal held that the word "dependant" as found in s. 5(1) of the Reciprocal Enforcement of Maintenance Orders Act, R.S.M. 1970, c. M-20; C.C.S.M., c. M-20, includes the mother of an illegitimate child in proceedings against a putative father - See paragraphs 11 to 15.

Words and Phrases

Maintenance order - The Manitoba Court of Appeal held that the words "maintenance order" as found in s. 5(1) of the Reciprocal Enforcement of Maintenance Orders Act, R.S.M. 1970, c. M-20; C.C.S.M., c. M-20, includes a filiation order against the father of an illegitimate child - See paragraph 16.

Cases Noticed:

Works v. Holt (1976), 22 R.F.L. 1 (Ont. P.C.), refd to. [para. 9].

Bowcott v. Rudy and Helper (1982), 15 Man.R.(2d) 27, refd to. [para. 16].

Bailey v. Bailey (1968), 68 D.L.R.(2d) 537 (S.C.C.), refd to. [para. 17].

Statutes Noticed:

Child Welfare Act, S.M. 1974, c. 30; C.C.S.M., c. C-80, sect. 63 [paras. 7, 9 to 10].

Reciprocal Enforcement of Maintenance Orders Act, R.S.M. 1970, c. M-20; C.C.S.M., c. M-20, sect. 2(1)(c) [paras. 11, 14 to 15]; sect. 2(1)(d) [para. 16]; sect. 5(1) [paras. 7, 9, 11 to 12, 14].

Provincial Judges Act Rules, sect. 16 [para. 10].

Counsel:

S. Devine, for the appellant.

This appeal was heard before HALL, O'SULLIVAN and HUBAND, JJ.A., of the Manitoba Court of Appeal, on December 20, 1982. The decision of the Court of Appeal was delivered on April 29, 1983, by O'SULLIVAN, J.A.