THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2003 SKCA 029 Date: 20030312 Between: Docket: 683 Garry Francis Bogdan (Respondent) Appellant and Katherine Jane Bogdan (Petitioner) Respondent Before: Tallis J.A. Counsel: Janice E. Gingell for the Appellant Ramond Wiebe for the Respondent Application: From: FLD Div. No. 467 of 2000, J.C. of Saskatoon Heard: March 12, 2003 Disposition: Allowed Written Reasons: March 12, 2003 By: The Honourable Mr. Justice Tallis TALLIS J.A. (orally) [1] The appellant has appealed an order granted in Queen’s Bench (Family Law Division) on January 3, 2003 which reads in material part:1. The Respondent’s income is found to be $83,611.00. Therefore he should pay child support for Jeffrey John Bogdan, born on November 9, 1980 commencing September 1, 2002 in the amount of $633.00 per month.2. The Respondent shall pay 79% of the following Section 7 expenses which are found to be necessary and reasonable: Bus pass 49.00 Physio 103.74 School bag 113.00 Sport lab book 84.90 Stats. book 120.86 Gymnastics manual 22.00 Commerce 7.00 Tuition 4,195.03 Less: Scholarship 2,200.00 TOTAL 2,495.53 79% $1,971.47 For the purpose of apportioning the Respondent’s share, the Petitioner’s income is $21,690.00 for the calendar year 2002. 3. Should the income of either party change subsequent to this Order the Respondent’s share of future Section expenses shall change accordingly. 4. The Respondent shall pay costs to the Petitioner in the sum of $450.00 Following issue of this order, the respondent took enforcement proceedings. [2] The appellant now moves for an order under Rule 15 staying execution and garnishment proceedings with respect to para. 2 and para. 4 of the above order. [3] The appellant did not appear in chambers on the return date of the application for variation and now questions the validity of service by mail. He appears to take the position that personal service was required. [4] The Queen’s Bench file indicates that the application was served by mail addressed to his home address an address which he designated as his address for service upon electing to represent himself.[1] [5] Whether the appellant was validly served under the Queen’s Bench Rules is an issue that will have to be properly presented and determined by the division of the Court hearing the appeal. From the material filed on this application one can infer that the appellant received the material in the mail, but decided not to appear because of his view that personal service was required. [6] As result of his non-appearance at the hearing, the presiding judge did not have the benefit of any evidence or submissions from the appellant. The judge decided the application on the evidence before him. [7] In my opinion, the appellant might well have brought an application in Queen’s Bench under rule 271 which reads: 271 Any verdict or judgment obtained, where one party does not appear at the trial, may be set aside by the court upon such terms as may be just, upon an application made within 15 days after the trial. This would have been more expeditious procedure. [8] Since this is the type of appeal that can be expedited, I am persuaded on the basis of the material before me to grant the stay. The monies paid into Court before this Rule 15 application launched will remain in Court pending the hearing and determination of the appeal. [9] With respect to the appeal, give the following directions: (1) The appellant having served his appeal book and factum on March 11, 2003, direct that the respondent serve and file her factum on or before March 26, 2003; (2) The Registrar will arrange an early date for hearing this expedited appeal. [10] Costs of this application are reserved for disposition by the division of the Court hearing this appeal. [1]See Affidavit of Earla Brandt sworn and filed on December 10, 2002 and letter of November 12, 2002 from Donlevy and Company to respondent’s solicitors..
The appellant sought an order under Rule 15 staying execution and garnishment proceedings with respect to an order granted in January 2003 for child support and s.7 expenses and costs. He questioned the validity of service by mail arguing personal service was required. HELD: Whether the appellant was validly served is an issue that will properly presented to and determined by the Court hearing the appeal. Bringing an application under Queen's Bench Rule 271 would have been a more expeditious procedure. The stay was granted since this was the type of appeal that can be expedited. The monies paid into court will remain in Court pending the hearing and determination of the appeal. Costs were reserved to the Court hearing the appeal.