Sangster v. Sangster

Sangster v. Sangster

Appeal allowed because the respondent's affidavit contained misleading statements and procedural notice was inadequate; default judgment set aside in large part to allow the appellant to respond, with specified paragraphs preserved and amended, and costs awarded to the appellant on substantial indemnity for the motion below and partial indemnity for the appeal.

Citation
C38505
Parties
Respondent (petitioner): Anne Marie Sangster; Appellant (respondent): Robert Scott Sangster
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
17 January 2003
Procedural Posture
Family (divorce, Corollary Relief) / Appeal From Dismissal of Motion to Set Aside Default Judgment (superior Court Order June 6, 2002)
Outcome
Appeal allowed in part; order of Herold J. set aside; default judgment dated April 19, 2000 set aside except for paragraphs 1, 2, 3, 12 and 13; paragraph 4 amended; funds in paragraph 14 returned to trust; husband ordered to file and serve answer and counter‑petition within seven days; costs awarded to appellant.
Legal Topics
Default Judgment, Setting Aside Judgment, Full and Frank Disclosure, Service Vs Filing of Pleadings, Property Division, Costs Awards
Source Language
English
Family Law Divorce Child Support Civil Procedure Costs Default Judgment Setting Aside Judgment Full and Frank Disclosure +3 more

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Parties

Anne Marie Sangster

Respondent (petitioner)

Robert Scott Sangster

Appellant (respondent)

Procedural Posture

Family (divorce, Corollary Relief) / Appeal From Dismissal of Motion to Set Aside Default Judgment (superior Court Order June 6, 2002)

Legal Issues

  1. 1 Whether the default judgment should be set aside for failure of full and frank disclosure in affidavit material and procedural unfairness
  2. 2 Whether portions of the default judgment should be preserved and amended
  3. 3 Whether costs should be awarded for misleading conduct and on what scale

Ratio Decidendi

Appeal allowed because the respondent's affidavit contained misleading statements and procedural notice was inadequate; default judgment set aside in large part to allow the appellant to respond, with specified paragraphs preserved and amended, and costs awarded to the appellant on substantial indemnity for the motion below and partial indemnity for the appeal.

Court Disposition

Appeal allowed in part; order of Herold J. set aside; default judgment dated April 19, 2000 set aside except for paragraphs 1, 2, 3, 12 and 13; paragraph 4 amended; funds in paragraph 14 returned to trust; husband ordered to file and serve answer and counter‑petition within seven days; costs awarded to appellant.

Orders

  • Appeal allowed and order of Herold J. dated June 6, 2002 set aside
  • Default judgment of Langdon J. dated April 19, 2000 set aside except for paragraphs 1, 2, 3, 12 and 13 which shall remain