Rimmer v. Adshead,

• Jurisdiction: Saskatchewan
• Judge: Cameron, Vancise and Lane, JJ.A.
• Neutral Citation: 2002 SKCA 12
• Court: Court of Appeal (Saskatchewan)
• Date: 10 December 2001
• Citation: (2002), 217 Sask.R. 94 (CA),2002 SKCA 12,[2002] 4 WWR 119,24 RFL (5th) 159,217 Sask R 94,217 SaskR 94,(2002), 217 SaskR 94 (CA),217 Sask.R. 94

Rimmer v. Adshead (2002), 217 Sask.R. 94 (CA);

    265 W.A.C. 94

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. FE.028

John Colin Rimmer (appellant) v. Donna Marie Adshead (respondent)

Donna Marie Adshead (appellant) v. John Colin Rimmer (respondent)

(Nos. 225, 250; 2002 SKCA 12)

Indexed As: Rimmer v. Adshead

Saskatchewan Court of Appeal

Cameron, Vancise and Lane, JJ.A.

January 18, 2002.

Summary:

A husband petitioned for divorce and applied for default judgment. Default judgment was granted. The wife applied to set aside the judgment. A judge, without setting aside the judgment for divorce, set aside the noting for default and then granted leave nunc pro tunc to file a counterpetition claiming corollary and other relief. Subsequently, a second judge ordered that an alleged interspousal contract be produced and that the issue of spousal support await the determination of whether there was a valid interspousal contract. The husband appealed the setting aside of the noting in default. The wife appealed the second judge's order.

The Saskatchewan Court of Appeal dismissed the husband's appeal. The court allowed the wife's appeal in part, remitting her application for interim support to the Court of Queen's Bench for determination in advance of the other issues.

Family Law - Topic 4081

Divorce - Corollary relief - Interim maintenance - Bars - A judge, without setting aside a judgment for divorce obtained by default, set aside the noting for default and then granted leave nunc pro tunc to file a counterpetition claiming corollary and other relief - A second judge ordered that the spousal support issue await the determination of whether there was a valid interspousal contract - The wife appealed the second judge's order - The Saskatchewan Court of Appeal ordered that the issue of interim spousal support be determined in advance of the other issues - The court considered, inter alia, that even if a valid interspousal contract was proved to exist, it did not necessarily preclude a spousal support order, interim or otherwise, and the other matters could take some time to be tried - See paragraphs 76 to 78.

Family Law - Topic 4195

Divorce - Practice - Judgments and orders - Variation of - A judge, without setting aside a judgment for divorce obtained by default, set aside the noting for default and then granted leave nunc pro tunc to file a counterpetition claiming corollary and other relief - The petitioner appealed - The Saskatchewan Court of Appeal held that the judge had the power to make the order - While not open to variation in relation to the divorce because the divorce was not set aside, the judgment remained open to variation in relation to corollary or other relief if, in making the order under appeal, the judge properly exercised the powers at his disposal - See paragraphs 45 to 57.

Practice - Topic 5409

Judgments and orders - General - Nunc pro tunc - The Saskatchewan Court of Appeal stated that "No rule expressly confers power to grant leave nunc pro tunc. But courts have long been taken to possess this power, subject to statutory limitation, as a product not of express rule but of the inherent jurisdiction of the Court to control it own process. ... In addition, the court possesses the inherent power to prevent abuse of its process." - See paragraphs 52 to 53.

Practice - Topic 6106

Judgments and orders - Amendment, rescission and variation of judgments and orders - After judgment or order perfected or entered - The Saskatchewan Court of Appeal stated that "The combined effect of Rules 114(3) and 40 is to empower the court to open up proceedings after judgment issues, without at the same time setting the judgment aside, and ultimately to vary the judgment." - See paragraph 50.

Practice - Topic 6106

Judgments and orders - Amendment, rescission and variation of judgments and orders - After judgment or order perfected or entered - [See Family Law - Topic 4195 and Practice - Topic 6197 ].

Practice - Topic 6197

Judgments and orders - Setting aside default judgments (incl. noting in default) - Grounds - A husband petitioned for divorce and applied for default judgment - He deposed that an interspousal agreement had been entered into by the parties, resolving all outstanding matters between them, including division of matrimonial property - Default judgment was granted - The wife applied to set aside the judgment - A judge, without setting aside the judgment for divorce, set aside the noting for default and then granted leave nunc pro tunc to file a counterpetition claiming corollary and other relief - The husband appealed - The Saskatchewan Court of Appeal dismissed the appeal - If the judge had done otherwise, effect would have been given to an interspousal contract, the existence, validity, and extent of which was sufficiently doubtful to warrant full inquiry - See paragraphs 58 to 72.

Cases Noticed:

Brown v. Brown (1988), 71 Sask.R. 220 (Q.B.), refd to. [para. 41].

Oleskiw v. Watt (1996), 139 Sask.R. 316; 132 D.L.R.(4th) 668 (Q.B. Fam. Div.), refd to. [para. 41].

Coulthard v. Coulthard (1952), 5 W.W.R.(N.S.) 662 (Sask. C.A.), refd to. [para. 49].

Sanderson v. North Canada Air Ltd., [1988] S.J. No. 80 (C.A.), refd to. [para. 50].

Sales v. Sereda (1952), 5 W.W.R.(N.S.) 470 (Sask. Q.B.), refd to. [para. 50].

R. v. Fenrich, [1985] 6 W.W.R. 269; 42 Sask.R. 117 (Q.B.), refd to. [para. 52].

Davidson v. Davidson and Hamilton (1952), 7 W.W.R.(N.S.) 272 (Sask. C.A.), refd to. [para. 52].

Budd v. Pioneer Co-operative (1986), 49 Sask.R. 306 (C.A.), refd to. [para. 52].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 52].

Boychuk v. Boychuk Estate (1993), 116 Sask.R. 54; 59 W.A.C. 54 (C.A.), refd to. [para. 53].

Castanho v. Brown & Root (U.K.) Ltd., [1981] 1 All E.R. 143 (H.L.), refd to. [para. 53].

Ingram v. Ingram, [1990] S.J. No 383 (Q.B.), refd to. [para. 55].

Wicks v. Wicks (1990), 87 Sask.R. 139 (C.A.), refd to. [para. 55].

McKinnon Industries Ltd. v. Walker, [1951] 3 D.L.R. 577 (P.C.), refd to. [para. 58].

Saskatchewan Power Corp. v. John Doe et al., [1988] 6 W.W.R. 634; 69 Sask.R. 158 (C.A.), refd to. [para. 58].

Bank of Montreal v. Pauls et al. (1985), 35 Sask.R. 204 (C.A.), refd to. [para. 60].

Klein v. Schile, [1921] 2 W.W.R. 78 (Sask. C.A.), refd to. [para. 60].

First City Capital Ltd. v. Abramson Enterprises Ltd. and Abramson (1988), 68 Sask.R. 281 (C.A.), refd to. [para. 60].

Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [para. 66].

Waxman (I.) & Sons v. Texaco Canada Ltd. (1968), 67 D.L.R.(2d) 295 (Ont. H.C.), affd. (1968), 69 D.L.R.(2d) 543 (Ont. C.A.), refd to. [para. 73].

Excelsior Life Insurance Co. v. Saskatchewan (1987), 63 Sask.R. 35 (Q.B.), refd to. [para. 73].

Newbery Energy Ltd. v. Amok Ltd. (1988), 62 Sask.R. 1 (Q.B.), refd to. [para. 73].

Statutes Noticed:

Matrimonial Property Act, S.S. 1997, c. M-6.11, sect. 2(a), sect. 21 [para. 42].

Rules of Court (Sask.), Queen's Bench Rules, rule 40, rule 114, rule 346 [para. 48].

Counsel:

R. Bradley Hunter, for the appellant, J. Rimmer;

W. Timothy Stodalka, for the respondent, D. Adshead.

These appeals were heard on December 10, 2001, by Cameron, Vancise and Lane, JJ.A., of the Saskatchewan Court of Appeal. Cameron, J.A., delivered the following decision for the Court of Appeal on January 18, 2002.