Andrew v. Andrew
The Chambers judge did not abuse his discretion in refusing the adjournment because the appellant had been personally served and was aware of his counsel's non-attendance, the respondent had timely filed supporting affidavit evidence and urgent circumstances justified proceeding; therefore the orders enforcing...
Source-derived case information.
- Citation
- 1996 NSCA 40
- Parties
- Appellant: Ian Richard Andrew; Respondent: Carol Elizabeth Andrew
- Court
- Nova Scotia Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 26 January 1996
- Procedural Posture
- Appeal From Chambers Decision on Maintenance Enforcement / Judgment on Appeal
- Outcome
- Appeal dismissed
- Legal Topics
- Adjournment Discretion, Garnishee/garnishment, Service of Notice, Costs, Use of Insurance Funds for Tuition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ian Richard Andrew
Appellant
Carol Elizabeth Andrew
Respondent
Procedural Posture
Appeal From Chambers Decision on Maintenance Enforcement / Judgment on Appeal
Legal Issues
- 1 Whether the Chambers judge erred in refusing an adjournment requested by the appellant's counsel
- 2 Whether the judge properly proceeded in the absence of the appellant who had been personally served
- 3 Whether the orders enforcing maintenance and permitting garnishee/use of insurance funds were justified
Ratio Decidendi
The Chambers judge did not abuse his discretion in refusing the adjournment because the appellant had been personally served and was aware of his counsel's non-attendance, the respondent had timely filed supporting affidavit evidence and urgent circumstances justified proceeding; therefore the orders enforcing maintenance and permitting garnishee/use of insurance funds were upheld and the appeal was dismissed with costs.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed with costs in the amount of $1,000.00 plus disbursements, taking into account two previous attendances in Appeal Court Chambers on the application to stay
Full Case Text
Judgment text and source record
1 paragraphs
Andrew v. Andrew Court Court of Appeal Date 1996-01-26 Citation 1996 NSCA 40 Docket CA 121151 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA); Hallett, J. Doane (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 121151 NOVA SCOTIA COURT OF APPEAL Hallett, Roscoe and Bateman, JJ.A. Cite as: Andrew v. Andrew, 1996 NSCA 40 BETWEEN: ) ) IAN RICHARD ANDREW ) Heidi Foshay Kimball ) for the Appellant Appellant ) ) - and - ) ) CAROL ELIZABETH ANDREW ) Valerie Romkey ) for the Respondent Respondent ) ) ) ) ) Appeal Heard: ) January 26, 1996 ) ) ) Judgment Delivered: ) January 26, 1996 THE COURT: The appeal is dismissed with costs as per oral reasons for judgment of Roscoe, J.A.; Hallett and Bateman, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by ROSCOE, J.A.: This is an appeal from a decision of a Supreme Court judge in Chambers who proceeded on an application to enforce arrears of maintenance in the absence of the appellant, who had been personally served with notice of the application. The appellant's solicitor had telephoned the respondent's counsel to ask that the matter be adjourned because of a conflict in her schedule. That request was refused because the respondent wanted to leave the province as soon as possible to visit her parents who were both ill. The appellant's solicitor then wrote to the Chambers judge and advised of her unavailability and asked that the matter be adjourned. She did not receive a response from the Chambers judge. The appellant was aware that his counsel would not be attending the hearing. Neither the appellant nor anyone acting on his behalf attended at the hearing, nor was any affidavit evidence filed on his behalf. Counsel for the respondent advised the Chambers judge that they wished to proceed. The transcript demonstrates that the Chambers judge was satisfied that the appellant had received notice of the hearing and that he was steadily employed as a police officer. It is also apparent that he had read and accepted the evidence in the affidavit filed by the respondent dealing with why it was necessary to have a garnishee and why she was requesting the use of insurance policy funds to pay university tuition for one of the children. It was within the discretion of the Chambers judge to determine whether an adjournment would be granted as requested by the appellant's counsel or to proceed as he did. See Civil Procedure Rule 37.11(1). We find no error in the exercise of his discretion nor in the orders made by him on the application. The appeal is therefore dismissed with costs in the amount of $1,000.00, plus disbursements, taking into account the two previous attendances in Appeal Court Chambers on the application to stay. Roscoe, J.A. Concurred in: Hallett, J.A. Bateman, J.A.