Sprumont v. Turner, (1984) 5 O.A.C. 292 (DC)

Judge:Henry, J.
Court:Superior Court of Justice of Ontario
Case Date:July 13, 1984
Jurisdiction:Ontario
Citations:(1984), 5 O.A.C. 292 (DC)
 
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Sprumont v. Turner (1984), 5 O.A.C. 292 (DC)

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Sprumont v. Turner

Indexed As: Sprumont v. Turner

Ontario Divisional Court

Henry, J.

September 10, 1984.

Summary:

A wife sued her ex-husband for maintenance arrears. She commenced the action by a specially endorsed writ of summons. A Master granted the wife's application for default judgment. The husband appealed and also applied to set aside the default judgment on several grounds.

The Ontario Divisional Court dismissed the appeal and the application.

Practice - Topic 2369

Writ of summons - Endorsements - Special endorsements - General - A wife sued her ex-husband by a specially endorsed writ, for maintenance arrears - The arrears were calculated based on provisions in a separation agreement - The amount was easily calculated - The Ontario Divisional Court held that the claim was for a liquidated demand in money within Rule 33 and therefore properly the subject of a special endorsement - See paragraph 16.

Practice - Topic 2393

Writ of summons - Nullities and irregularities - Irregularity - What constitutes - The copy of the writ of summons served on the defendant did not contain the day of the month on which the writ was issued - The Ontario Divisional Court held that the error was merely an irregularity and did not nullify the writ where the writ was properly served and the defendant immediately contacted a lawyer, but chose neither to attack the writ nor defend the action (i.e. was not prejudiced) - The court precluded the defendant from attacking the writ after taking steps to set aside the default judgment against him - See paragraphs 17 to 20.

Practice - Topic 6198

Judgments and orders - Setting aside judgments - Default judgments - Affidavit of merits - Defence on the merits - A wife sued her ex-husband for maintenance arrears and obtained default judgment - The husband applied to set the judgment aside, claiming he had a defence on the merits i.e. he intended to seek a variation of maintenance and a reduction or forgiveness of the arrears - The Ontario Court of Appeal held that the mere prospect of an award or order inconsistent with the maintenance obligation was not a good defence on the merits - See paragraphs 21 to 24.

Cases Noticed:

Hubert v. Cortez Explorations Limited, [1956] O.W.N. 49, consd. [para. 17].

Spurgin v. Spurgin and Harless, [1947] O.W.N. 764, consd. [para. 18].

Porter v. Porter (1980), 21 R.F.L. (2d) 228, folld. [para. 22].

Statutes Noticed:

Rules of Court (Ont.), rule 33 [paras. 16, 27].

Counsel:

Roland W. Thurston, Q.C., for the appellant;

Peter K. Foulds, for the respondent.

This appeal and application were heard before Henry, J., of the Ontario Divisional Court on July 13, 1984, whose decision was delivered orally and released on September 10, 1984.

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