St. Denis v. Trumbley, (1977) 4 A.R. 212 (CA)

• Judge: McDermid, Lieberman and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 25, 1977
• Citations: (1977), 4 A.R. 212 (CA)

St. Denis v. Trumbley (1977), 4 A.R. 212 (CA)

MLB headnote and full text

St. Denis v. Trumbley

Indexed As: St. Denis v. Trumbley

Alberta Supreme Court

Appellate Division

McDermid, Lieberman and Haddad, JJ.A.

May 25, 1977.

Summary:

This case arose out of a filiation proceeding brought by the mother of a child against the putative father under the Maintenance and Recovery Act, R.S.A. 1970, c. 223. The mother made a complaint to the court, but the court did not issue a summons against the putative father for over one year. Upon the putative father's objection to the delay the trial judge dismissed the complaint. The complainant appealed.

The Alberta Court of Appeal allowed the appeal and held that the delay by the court in issuing the summons did not vitiate the proceeding and remitted the matter to the trial judge for hearing.

Infants - Topic 2512

Illegitimate children - Filiation proceedings - Nature of filiation proceedings - The Alberta Court of Appeal held that a filiation proceeding under the Maintenance and Recovery Act, R.S.A. 1970, c. 223, was a civil action and that the Rules of Court were applicable to its procedure - See paragraphs 2 to 13.

Infants - Topic 2522

Illegitimate children - Filiation proceedings - Practice - Issuance of summons - A mother of a child made a complaint to commence a filiation proceeding against the child's putative father under the Maintenance and Recovery Act, R.S.A. 1970, c. 223, but the court did not issue a summons for over one year - The trial judge dismissed the complaint for delay - The Alberta Court of Appeal held that the delay by the court in issuing the summons did not vitiate the proceeding and remitted the matter to the trial judge for hearing - See paragraphs 14 to 21.

Practice - Topic 5359

Dismissal - Grounds - Want of prosecution - General principles - Rules of Court (Alta.), Rule 244 - A mother of a child made a complaint to commence a filiation proceeding against the child's putative father under the Maintenance and Recovery Act, R.S.A. 1970, c. 223, but the court did not issue a summons against the putative father for over one year - Upon the putative father's objection to the delay the Alberta Court of Appeal held that Rule 244 of the Rules of Court was applicable, but that the discretionary power of dismissal of an action for delay should be used sparingly and in accordance with the objects of the Maintenance and Recovery Act - The Court of Appeal refused to dismiss the action, since the purpose of the Act was to benefit the child, who could not be responsible for the delay by the court - See paragraphs 24 to 25.

Words and Phrases

Action - The Alberta Court of Appeal held that the meaning of "action" as found in Rules 3 and 5 of the Rules of Court (Alta.) includes a filiation proceeding under the Maintenance and Recovery Act, R.S.A. 1970, c. 223 - See paragraphs 5 to 18.

Words and Phrases

Proceeding - The Alberta Court of Appeal held that the meaning of "proceeding" as found in Rule 3 of the Rules of Court (Alta.) includes a filiation proceeding under the Maintenance and Recovery Act, R.S.A. 1970, c. 223 - See paragraphs 5 to 13.

Cases Noticed:

Workun v. Nelson (1958), 26 W.W.R.(N.S.) 600, appld. [para. 2].

Matheson (Inspector of Child Welfare) v. Frederick, [1945] 2 W.W.R. 591, appld. [para. 3].

Galenza v. Berezanski, [1973] 5 W.W.R. 1, refd to. [para. 3].

Mathieson v. Andriuk, [1941] 3 D.L.R. 480, appld. [para. 4].

Murray v. Delta Copper Co. Ltd., [1923] 3 D.L.R. 118; 2 W.W.R. 284, consd. [para. 11].

Bazinet v. Coons and Coons and Town of Gravelbourg (1953-4), 10 W.W.R.(N.S.) 667, consd. [para. 12].

Attorney General for Ontario v. Daly, [1924] A.C. 1011, consd. [para. 14].

Smolak v. Necula, [1974] 1 W.W.R. 1, refd to. [para. 23].

Statutes Noticed:

Judicature Act, R.S.A. 1970, c. 193, sect. 39 [para. 8].

Maintenance and Recovery Act, R.S.A. 1970, c. 223, sect. 5(1) [para. 5]; sect. 15 [para. 18].

Rules of Court (Alta.), rule 3, rule 4, rule 5(a) [para. 8]; rule 11 [para. 21]; rule 244 [para. 24].

Authors and Works Noticed:

Jowitt, Dictionary of English Law [para. 9].

Counsel:

D.F. McLeod, Q.C., for the appellant;

E.H. Schuster, for the respondent.

This case was heard before McDERMID, LIEBERMAN and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On May 25, 1977, McDERMID, J.A., delivered the following judgment for the Appellate Division: