F. Notice; Inadequacy of Information; Non-Attendance

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 544-545

Page 544

The requirement for personal service of a notice of motion may be judicially dispensed with where the respondent has actual knowledge of the contents of the notice and no prejudice is thereby caused.⁴⁶Where a court is unable to make a determination as to the application of the Federal Child Support Guidelines on the material filed, the court may direct that a pre-trial settlement conference address the issues.⁴⁷In proceedings to vary child and spousal support on the basis of affidavit material filed, it may be concluded that the chambers judge cannot properly assess critical issues, in which event one of the options available is the direction of a hearing where viva voce evidence may be called.⁴⁸A court may revisit interim orders for child support and spousal support based on an unduly optimistic imputation of income, where the obligor’s non-appearance at the original hearing was not wilful. A change of circumstances need not be demonstrated when the court reconsiders the issue of child support pursuant to Rules 52(4) and (5) of the British Columbia Supreme Court Rules.⁴⁹Where a divorce petition includes a claim for child support and the non-custodial parent is given notice of the claim when served with the petition but elects not to file an answer and does not appear at trial, the judge clearly has jurisdiction to make an order for child support. Furthermore, such an order is enforceable some years later, regardless of whether the non-custodial parent was given notice that a child support order had been made against him, provided that no prejudice would thereby ensue. A spouse who fails to file an answer in divorce proceedings wherein child support is sought cannot succeed in an application to rescind arrears of support on the ground that he or she was not notified of the support order. An order for child support made at the time of the divorce judgment is enforceable, regardless of whether the non-custodial parent was notified that the order had been made.⁵⁰

A spouse who does not contest the right to divorce but opposes a corollary claim for support is entitled to notice of the hearing. Where no such notice is given and support is ordered, an application may be made to reopen the matter and the trial judge may stay the original order and set it aside after a further hearing.⁵¹In Alberta, a notice to disclose can be served to compel the disclosure of current income, assets, and other financial information. This notice can be...