C.A. No. 104845
NOVA SCOTIA COURT OF APPEAL
Chipman, Jones and Pugsley, JJ.A.
Cite as: Anderson v. Anderson, 1995 NSCA 12
BETWEEN: )
)
JOHN ANDERSON ) Alexander C.W. MacIntosh
) for the Appellant
Appellant )
)
- and - )
)
ARLENE ANDERSON ) Ronald C. Giffin, Q.C.
) for the Respondent
Respondent )
)
)
) Appeal Heard:
) January 25, 1995
)
)
) Judgment Delivered:
) January 25, 1995
THE COURT: The appeal is allowed as per oral reasons for judgment of Chipman, J.A.; Jones and Pugsley, JJ.A., concurring.
The reasons for judgment of the Court were delivered orally by
CHIPMAN, J.A.:
This is an appeal from a Divorce Judgment and Corollary Relief Judgment, both granted April 13, 1994 in an undefended proceeding.
The Petition for Divorce was served on the appellant on December 13, 1992. No answer was filed by him or on his behalf.
On March 10, 1994, the respondent filed documentation in the Supreme Court to process the matter as an undefended proceeding. Copies of the material were sent to a solicitor who had acted for the appellant but had not at any time appeared on the record. The solicitor by letter dated March 18, 1994 acknowledged receipt of the material but pointed out to respondent's counsel that he was not on the record for the appellant and no longer acted for him.
The respondent's counsel proceeded with the application and the Divorce and Corollary Relief Judgments were granted in Supreme Court on April 13, 1994.
Rule 57.15 of the Civil Procedure Rules provides in part:
"57.15 (1) A petitioner may include in the notice of petition a notice that in default of answer the proceeding will be set down, within thirty (30) days of the default, for hearing, at a sitting of the court held at the place proposed by the petitioner in the petition, and where the proceeding is so set down for hearing, no further notice of the hearing shall be necessary.
(2) In all other cases, a notice of hearing in Form 57.15A or 57.15B shall be served on the respondent spouse and all persons named in the petition and alleged to have committed an adultery, and, where the person to be served is not represented by a solicitor, service shall be effected by mailing the notice by ordinary mail at least ten (10) days prior to the date of the hearing, unless the court orders otherwise."
This rule was not complied with. A Decree Nisi granted in an undefended proceeding is not the same as a default judgment. See Bezanson v. Bezanson (1984), 62 N.S.R. (2d) 118. The proper procedure is to appeal from such a judgment which was not obtained in accordance with the rules.
The appeal is allowed and the judgments are set aside without costs. The matter is remitted to the Supreme Court.
Chipman, J.A.
Concurred in:
Jones, J.A.
Pugsley, J.A.