2010 NLCA 71, 2010 NLCA 71

Date: 20101119 Docket: 10/30 Citation: Hyman v.

Lukyanenko 2010 NLCA 71 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : CLAUDETTE HYMAN APPELLANT AND : ROMAN LUKYANENKO RESPONDENT Coram: Green, CJNL, Mercer and Harrington, JJ A Court Appealed From: Supreme Court of Newfoundland and Labrador Unified Family Court 2010 02U 0035 Appeal Heard: November 16, 2010 Decision Rendered: November 16, 2010 Memorandum of Disposition Filed: November 19, 2010 Memorandum of Disposition by Green, CJNL The Appellant appearing on her own behalf Counsel for the Respondent: Philip Warren MEMORANDUM OF DISPOSTION Green, CJNL: [ 1 ] The respondent in this appeal, challenging the validity of a judgment of divorce, applied under rule 57.17(1)(

e) and (

f) of the Rules of the Supreme Court, 1986 to strike out the appeal on the grounds of undue delay in the preparation and perfection of the appeal and failure to set the matter down for hearing. [ 2 ] The appellant opposed the application on the ground, amongst other things, that there was a legitimate issue to be determined on the appeal, namely, whether the court granting the judgment of divorce had jurisdiction to do so. [ 3 ] The notice of appeal alleged only one ground of appeal: that at the time of the granting of the divorce, neither party had been

resident in the province for at least one year preceding the commencement of the proceeding, as required by s. 3(1) of the Divorce Act , R.S.C., 1985, c.3 (2 nd Supp). [ 4 ] The respondent acknowledged that the appellant was correct when she alleged that neither of them had met the jurisdictional residency requirement and conceded that the appeal should be allowed.

He therefore indicated that if the Court was not inclined to strike out the notice of appeal on account of delay, he would be prepared to have the appeal heard forthwith and that he would consent, pursuant to Rule 57.26, to the appeal being allowed. [ 5 ] The Court indicated that considering the amount of time that had elapsed, the absence of the appellant from the province and the fact that she was unrepresented, it would not be inclined to strike out the appeal at this time but would consider dealing with the appeal forthwith.

The appellant, who appeared by teleconference, agreed with having the appeal dealt with. [ 6 ] Accordingly, we concluded that given the fact – acknowledged by both parties – that the statutory residency requirement had not be met at the time the divorce judgment was granted, the Unified Family Court did not have jurisdiction to entertain the divorce application and that the appeal should be allowed and the judgment of divorce set aside. See MacPherson v. MacPherson (1976), 1976 CanLII 854 (ON CA) , 13 O.R. (2d) 233 Evans JA at pp. 239-240 and Dubin JA at p. 243. [ 7 ] The Court made the following order: 1.

The respondent’s application to strike out the notice of appeal is dismissed; 2. The appeal shall be deemed to have been perfected without the filing of any further material by either party; 3. In light of the fact that the respondent concedes that the ground of appeal set out in the notice of appeal is correct and that the Unified Family Court did not have jurisdiction to entertain the divorce application, the appeal should be allowed; 4. The judgment of divorce dated March 1, 2010 granted by the Unified Family Court in proceeding 2010 02U 0035 is set aside; 5.

The matter is remitted to the Unified Family Court (now renamed the Family Division) with leave to either party to proceed with the divorce application provided that jurisdiction can now be established (we would note, in passing, that whether any further request for a divorce judgment can be grounded in the existing proceeding or whether a new proceeding must be commenced, either in this province or elsewhere, is something that may have to be determined by the forum whose jurisdiction is being invoked for such purpose); 6.

The respondent shall pay the appellant’s costs of this appeal which, pursuant to rules 55.02(1)(

a) and 55.04(1), were fixed at $80.00, being the cost of filing the notice of appeal and incidental costs associated therewith. J. D. Green, CJNL