Kunz v. Kunz Estate, (2004) 253 Sask.R. 307 (FD)

• Judge: McIntyre, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 18, 2004
• Jurisdiction: Saskatchewan
• Citations: (2004), 253 Sask.R. 307 (FD);2004 SKQB 410

Kunz v. Kunz Estate (2004), 253 Sask.R. 307 (FD)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. OC.054

Elaine Kunz (petitioner) v. Nicole Leigh Kunz and Jaclyne Faye Entze, Executors of The Estate of Larry Jerome Kunz (respondent) and Debra Maxine Mosiondz (defendant)

(2002 F.L.D. No. 335)

Debra Maxine Mosiondz (plaintiff) v. Nicole Leigh Kunz and Jaclyne Faye Entze, Executors of The Estate of Larry Jerome Kunz, the said Estate and Crossroads Land and Cattle Corporation (defendants)

(2002 Q.B.G. No. 149)

(2004 SKQB 410)

Indexed As: Kunz v. Kunz Estate

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Regina

McIntyre, J.

October 18, 2004.

Summary:

Kunz issued a petition against the estate of her late husband, claiming, inter alia, a division of family property and relief under the Dependants' Relief Act. She asserted in part that her husband and Mosiondz conspired to divert family assets and as relief was being sought against Mosiondz personally she was deemed to be a party to the proceedings. Mosiondz claimed that she cohabited and lived with the husband prior to his death for over two years and that she was gifted certain property either by way of an inter vivos gift or by way of designation of insurance or registered retirement benefits upon the husband's death. Kunz and Mosiondz each applied for survivor's benefits under the Canada Pension Plan in respect of the husband's death. Kunz's application was denied and Mosiondz's application was allowed on the basis that there was a common law relationship between the husband and Mosiondz. Kunz appealed. The appeal was denied. She filed a further appeal to a review tribunal. Kunz applied under Queen's Bench Rule 588(3) for permission to use, in her appeal, certain questions and answers from the examination for discovery of Mosiondz as well as certain documents that were either disclosed by Mosiondz as a result of the service of a notice to disclose or, alternatively, obtained as a result of authorizations executed by Mosiondz pursuant to a court order.

The Saskatchewan Court of Queen's Bench, Family Law Division, dismissed the application.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Kunz filed a petition against her late husband's estate, claiming, inter alia, a division of family property and relief under the Dependants' Relief Act - She asserted that her husband and Mosiondz conspired to divert family assets - Mosiondz claimed that she had cohabited with the husband for over two years and had been gifted the property - Kunz and Mosiondz each applied for survivor's benefits under the Canada Pension Plan - Mosiondz's application was allowed on the basis that there had been a common law relationship - Kunz's appeal was denied - Kunz filed a further administrative appeal - Kunz sought permission to use discovery evidence from Mosiondz in her appeal (Queen's Bench Rule 588(3)) - The Saskatchewan Court of Queen's Bench, Family Law Division, denied permission - Kunz failed to establish special circumstances or that the interest of justice outweighed the harm that would result - The existence of two proceedings raising similar issues was not, by itself, a special circumstance - Some of the documentation sought might be available or compellable in the CPP proceedings - In any event, the request was an unwarranted invasion on Mosiondz's privacy right - It would give Kunz an advantage and might disadvantage Mosiondz in a manner that would not occur but for the civil proceedings.

Practice - Topic 4502

Discovery - Use of examination in court or other proceeding - Use of examination in action or other proceeding - [See Practice - Topic 4157 ].

Cases Noticed:

Home Office v. Harmen, [1982] 1 All E.R. 532; [1983] A.C. 280 (H.L.), refd to. [para. 49].

Sterling et al. v. Sullivan et al. (2003), 236 Sask.R. 148; 231 D.L.R.(4th) 344; 2003 SKQB 359, refd to. [para. 9].

Letourneau et al. v. Clearbrook Iron Works Ltd. (2003), 238 F.T.R. 241; 28 C.P.R.(4th) 71; 2003 FC 949, refd to. [para. 10].

Schreiber v. Canada (Attorney General) et al., [2001] 1 W.W.R. 739; 269 A.R. 97 (Q.B.), refd to. [para. 11].

L.H. v. Caughell, [1996] O.J. No. 331 (Gen. Div.), refd to. [para. 14].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 588 [para. 7].

Counsel:

W. Timothy Stodalka, for Elaine Kunz and Crossroads Land and Cattle Corporation;

Gerald B. Heinrichs, for Debra Maxine Mosiondz.

This application was heard by McIntyre, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Regina, who delivered the following judgment on October 18, 2004.