McCarthy v. Ivany, 2013 NLCA 38

Date: 20130528 Docket: 12/84 Citation: McCarthy v. Ivany , 2013 NLCA 38 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: PENNY MCCARTHY APPELLANT AND: ROBIN IVANY RESPONDENT Coram: Barry, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 19970208466 Appeal Heard: May 15, 2013 Judgment Rendered: May 28, 2013 Reasons for Judgment by Barry J.A. Concurred in by White and Hoegg JJ.A. Counsel for the Appellant: Michael Ralph Counsel for the Respondent: Self Represented

Barry J.A.: [ 1 ] Penny McCarthy appeals a decision of the Family Division that terminated payments of support by Robin Ivany for the parties’ daughter Megan. She is 23 years old. Mr. Ivany believes she is no longer a full-time student and says he cannot afford to continue support. Ms. McCarthy’s grounds of appeal are two: (

i) that she did not receive notice of the case management meeting of November 6, 2012, where the decision was rendered; and (ii) that in any event the case management judge had no jurisdiction to make an order disposing of the support issue in the absence of Ms. McCarthy, without her consent. [ 2 ] Whether or not proper service was effected of the notice of the case management meeting, the appeal must be allowed on the second ground. This Court in Chafe v.

Henley , 2003 NLCA 57 , 231 Nfld. & P.E.I.R. 264, made it clear that the Rules of the Supreme Court, 1986 , particularly rules 56A.21(2) and (3), which set out what happens at a case management meeting at the Family Division and list the powers of the presiding judge, do not authorize the judge to make an order disposing of the litigation that is the subject of the proceeding unless the parties consent. Accordingly, the order of the case management judge terminating support payments, where Ms.

McCarthy did not consent, was invalid and must be quashed. [ 3 ] On the matter of service, the case management judge received information from the Court clerk that notice had been sent by registered mail and that an “attempted delivery notice” had been left for Ms. McCarthy on October 10 th but had not been picked up. From this the judge inferred Ms. McCarthy had chosen not to pick up the notice. [ 4 ] With respect, the evidence did not support this adverse inference. The transcript does not disclose where the attempted delivery notice had been placed.

It notes that the clerk’s comment on the point was “inaudible”. (I recognize that it may have been audible to the case management judge.) Even assuming there was evidence that the notice had been left in Ms. McCarthy’s post box, it should have been recognized that mis-deliveries of mail can occur. At times postal employees may accidentally leave mail for one party in the mailbox of a neighbour. Sometimes a piece of mail may be lost by getting accidentally thrown out with flyers left in the same mailbox. [ 5 ] In Curran v.

Hynes , 2011 NLCA 44 , 309 Nfld. & P.E.I.R. 354, this Court held that an applications judge erred by deciding significant issues of fact and law in the absence of one of the parties without a basis to conclude she did not wish to attend. [ 6 ] The case of Feener v. Feener , 2012 NLTD(G) 38, 321 Nfld. & P.E.I.R. 54 , describes the sort of attempts normally made by court officials to contact parties by telephone or mail where they have failed to appear for a case management conference.

Without attempting to set out what might be a reasonable procedure for use in all cases, I can say that in the present case it would have been reasonable to set another date for the conference and attempt again to provide notice of this to Ms. McCarthy. There was no evidence that she was attempting to delay or avoid proceedings by failing to appear. She had filed a response to the application in a timely fashion, objecting to the termination of support. In the circumstances, where there was no serious prejudice to Mr. Ivany, the matter should have been rescheduled and notice provided to Ms.

McCarthy, or a trial date should have been set and notice provided to her. [ 7 ] The order of November 6, 2012 that support payments cease is set aside and the matter is remitted to the Family Division for a rescheduling of the case management meeting. ______________________________ L. D. Barry J.A. I Concur: _______________________________ C. W. White J.A. I Concur: _______________________________ L. R. Hoegg J.A.