Ainsley Hunter

The applicant brought a motion for a preservation order under the Family Law Act to restrain the respondent from depleting his assets, specifically funds received from a motor vehicle accident settlement.

The applicant alleged the respondent was recklessly spending the funds and relied on dated medical reports to question his financial capacity.

The court applied the three-part test for a preservation order and found the applicant failed to establish a clear claim for equalization or support, failed to prove irreparable harm, and that the balance of convenience favoured the respondent.

The motion was dismissed.

The appellant appealed from orders made over ten years prior determining equalization, child support, and spousal support in a family law proceeding.

The appellant had failed to appear at trial in 2007 and at a subsequent motion to set aside the trial order in 2008.

The Court of Appeal admitted fresh evidence demonstrating the appellant's serious mental health issues, including PTSD and major depressive disorder, which rendered her incapable of attending the proceedings.

The court found that the appellant's absence was excused and that procedural fairness required setting aside the trial and motion orders.

The court ordered a new trial to determine the issues of equalization and support, set aside a garnishment order, and required the respondent to return garnished funds with interest.

The respondent moved to delist an appeal pending the outcome of outstanding matters in the Superior Court.

The Court of Appeal considered whether it should exercise its discretion to delist the appeal or allow it to proceed as scheduled.

The court determined that the appeal court was the appropriate forum to address the fundamental issue on appeal regarding whether an order made in the absence of the appellant should stand.

The motion was dismissed and the appeal was permitted to proceed as scheduled.

Costs were awarded to the responding party on a partial indemnity basis.