Sibanda v. Ndlovu, 2012 ABQB 49

Court of Queen ’ s Bench of Alberta Citation: Sibanda v. Ndlovu, 2012 ABQB 49 Date: 20120119 Docket: 4803 157883 Registry: Edmonton Between: Monday Sibanda Plaintiff - and - Nosizo Ndlovu Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On December 15, 2011, this court granted a divorce judgment without a hearing on representations that the plaintiff had served the respondent with notice of his application to consider the application for divorce as uncontested despite the filing of a Statement of Defence and that she had agreed to such a change in procedure. It has now become apparent that, because of language difficulties rather than fraud, the plaintiff misunderstood the nature of the service that was required and that the required service had not been effected. Invoking Rule 9.12, the court therefore sets aside the divorce judgment it signed on December 15, 2011. Cases and authority cited

[ 2 ] By the court : Hansraj v. Ao (#3) 2003 ABQB 299 ;; Scotia Mortgage Corp v. Dhillon [2007] B.C.J. No. 1646 1. Background [ 3 ] On December 15, 2011, in morning chambers, this court heard an application from the plaintiff to dispense with the respondent ’ s consent to consideration of his application for divorce as an uncontested application. The plaintiff, whose first language is not English, was unrepresented and was assisted by duty counsel.

It appeared that the plaintiff had previously properly served the respondent with a Statement of Claim for divorce and related relief and the defendant had filed a Statement of Defence. The gist of the application on December 15, 2011 was to dispense with the respondent ’ s approval to treat the divorce application as an uncontested claim despite the filing of a Statement of Defence.

With the assistance of duty counsel, the plaintiff represented that the respondent had been properly served with an application to proceed with the divorce as an uncontested divorce, that she had agreed to such a proceeding but that she had not - through misunderstanding of the required procedure - executed a formal consent to the change in procedure. [ 4 ] Relying on those representations, the court dispensed with the written consent of the respondent and granted the divorce judgment. Mr.

Sibanda entered the divorce judgment on December 15, 2011. [ 5 ] Upon being served with the divorce judgment, the respondent immediately contacted duty counsel to advise that she had not, in fact, been served with a notice of an application to consider the divorce judgment without an oral hearing. Indeed, she opposed the granting of a divorce, albeit for reasons that may well not be relevant to the statutory grounds for divorce.

Nevertheless, the result is that she was denied the opportunity of opposing the granting of a divorce judgment. [ 6 ] There is no basis for assuming that, in making the representations concerning service of the application to hear the matter on an uncontested basis, the plaintiff behaved in a fraudulent manner; on the contrary, the error appears to have occurred as a result of the fact that the plaintiff ’ s first language is not English and that he is not familiar with court procedures. [ 7 ] There is no indication that the plaintiff would suffer any prejudice as a result of the correction of the error which occurred on December 15, 2011. [ 8 ] On January 19, 2012, the same duty counsel who appeared in chambers on December 15, 2011, appeared before me in private chambers to put the aforementioned developments before me and to ask whether the court could, and should, revisit the December 15, 2011 judgment. 2.

Is the court functus ? [ 9 ] For understandable policy reasons relating to the finality and reliability of court decisions, the general rule is that, once a final judgment has been entered, it cannot be changed. [ 10 ] For equally understandable reasons relating to the need for flexibility which does not undermine the principle of finality, courts have modified the general rule.

Those modifications are reflected in Rule 9.12 which states: On application, the Court may correct a mistake or error in a judgment or order arising from an accident, slip or omission. [ 11 ] Here, the divorce judgment was granted in error: the court intended only to deal with a deficiency of form - the absence of an executed consent to an uncontested hearing representing the respondent ’ s actual intention to consent; it did not intend to deal with a deficiency of substance - the absence of consent to an uncontested hearing.

In other words, there was an error in the granting of the divorce judgment arising from the omission of service on the respondent of notice of an application to consider the divorce on an uncontested basis. [ 12 ] Even though the error occurred through no fraud on the part of the applicant, and even though the objections of the

respondent to the granting of a divorce may not constitute a valid objection in law, the effect of the decision on December 15, 2011 was to deprive the respondent of her opportunity to contest the plaintiff ’ s application for divorce. That is a substantive effect of the December 15 hearing which was unintended. [ 13 ] The court has considered whether the absence of service on the respondent of a notice of application to deal with the divorce application without an oral hearing is an error or omission which comes within the ambit of Rule 9.12.

Although I have been unable to find any case law dealing with the exact circumstances which occurred here, I have concluded that the decisions in Hansraj and Scotia Mortgage Corp . support the conclusion that the situation here is indeed one within the category of mistakes or errors which can be corrected even though the judgment has been entered. Indeed, the latter case deals with the absence of notice which has substantive effects; there, even though striking out entered judgments had effects on third parties, the court concluded that “ it is the only just result ” .

The situation is similar here. [ 14 ] The court concludes that it is not functus in these proceedings so as to prevent it from setting the divorce judgment aside. 3. Setting aside the divorce judgment [ 15 ] In

summary, the court concludes that it has jurisdiction under Rule 9.12 to correct a judgment erroneously given and that, in the circumstances here, it should do so. [ 16 ] Because the respondent was not properly served with notice of an application to consent to the hearing of the divorce application as an uncontested matter, the divorce judgment granted and entered on December 15, 2011, is set aside. Mr. Sibanda should immediately attend at the Edmonton trial coordinators ’ office to obtain a date for the hearing of his divorce application. Application made the 19 th day of January, 2012.

Dated at the City of Edmonton, Alberta this 19 th day of January, 2012. J.B. Veit J.C.Q.B.A. Appearances: Julie Lloyd, Duty Counsel