M.D.D. v. M.R.M.

M.D.D. v. M.R.M.

The application for divorce was dismissed because there was no admissible evidence that the defendant had been served or had personally filed the appearance; the Divorce Act and Rules require actual notice in divorce proceedings and a purported appearance filed by the plaintiff with an unauthenticated signature and photocopied ID did not satisfy that requirement.

Citation
2009 BCSC 1097
Parties
Plaintiff: M.D.D.; Defendant: M.R.M.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 August 2009
Procedural Posture
Divorce / Application for Divorce (undefended, Without Hearing)
Outcome
Application for divorce dismissed; order of divorce refused.
Legal Topics
Service of Process, Appearance, Notice Requirements, Application Procedure, Divorce Act Interpretation
Source Language
English
Family Law Divorce Civil Procedure Service of Process Appearance Notice Requirements Application Procedure Divorce Act Interpretation

Case Brief

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Parties

M.D.D.

Plaintiff

M.R.M.

Defendant

Procedural Posture

Divorce / Application for Divorce (undefended, Without Hearing)

Legal Issues

  1. 1 Whether a divorce may be granted absent proof of service of the writ when an appearance bearing the defendant's signature is filed by the plaintiff
  2. 2 Whether a signature on an appearance and a photocopy of an identification document suffice to prove the defendant filed the appearance
  3. 3 Whether the Divorce Act requires actual service of the writ rather than deemed service by appearance in divorce proceedings

Ratio Decidendi

The application for divorce was dismissed because there was no admissible evidence that the defendant had been served or had personally filed the appearance; the Divorce Act and Rules require actual notice in divorce proceedings and a purported appearance filed by the plaintiff with an unauthenticated signature and photocopied ID did not satisfy that requirement.

Court Disposition

Application for divorce dismissed; order of divorce refused.

Orders

  • Application for divorce dismissed
  • Defendant must be served with the writ of summons