Atkinson v. Atkinson

Atkinson v. Atkinson

Despite acknowledging the court is functus officio with respect to the entered November 6, 2018 order, the judge applied Rule 14-7(77) and the Miracle Feeds test and found all criteria met: the respondent's departure was not wilful due to supporting medical evidence, the application was brought as soon as reasonably possible, the respondent has defences worthy of investigation, and affidavit evidence supported these findings; accordingly the November 6, 2018 judgment is set aside; costs reserved to be determined on the ultimate outcome of the claimant's proceeding.

Citation
2019 BCSC 1220
Parties
Claimant: Allayne Jean Atkinson; Respondent: David Everett Atkinson
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
25 July 2019
Procedural Posture
Family Law Post Trial Set Aside Application / Post Judgment Application to Set Aside Order
Outcome
Judgment of November 6, 2018 set aside.
Legal Topics
Set Aside Judgment, Functus Officio, Absence at Trial Rule, Miracle Feeds Test, Medical Incapacity
Source Language
English
Family Law Civil Procedure Constitutional Law Set Aside Judgment Functus Officio Absence at Trial Rule Miracle Feeds Test Medical Incapacity

Case Brief

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Parties

Allayne Jean Atkinson

Claimant

David Everett Atkinson

Respondent

Procedural Posture

Family Law Post Trial Set Aside Application / Post Judgment Application to Set Aside Order

Legal Issues

  1. 1 Whether the court may set aside a judgment entered after trial where a party was absent
  2. 2 Application and scope of the functus officio doctrine
  3. 3 Applicability of Supreme Court Family Rules 21-6(3) and 14-7(77)

Ratio Decidendi

Despite acknowledging the court is functus officio with respect to the entered November 6, 2018 order, the judge applied Rule 14-7(77) and the Miracle Feeds test and found all criteria met: the respondent's departure was not wilful due to supporting medical evidence, the application was brought as soon as reasonably possible, the respondent has defences worthy of investigation, and affidavit evidence supported these findings; accordingly the November 6, 2018 judgment is set aside; costs reserved to be determined on the ultimate outcome of the claimant's proceeding.

Court Disposition

Judgment of November 6, 2018 set aside.

Orders

  • Judgment of November 6, 2018 is set aside.
  • Costs of the present application to be determined on the ultimate outcome of the claimant's application.