Palansky v. Palansky, (1989) 60 Man.R.(2d) 141 (QBFD)

• Judge: Monnin, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 20, 1989
• Jurisdiction: Manitoba
• Citations: (1989), 60 Man.R.(2d) 141 (QBFD)

Palansky v. Palansky (1989), 60 Man.R.(2d) 141 (QBFD)

MLB headnote and full text

Sydney David Palansky (petitioner) v. Phylis Palansky (respondent)

(89-01-16733)

Indexed As: Palansky v. Palansky

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Monnin, J.

July 20, 1989.

Summary:

A husband petitioned for divorce. The husband subsequently filed an amended petition seeking in addition to set aside the separation agreement between the parties. The petition included the husband's financial statement. The wife filed an answer, without attaching a financial statement. The husband applied to strike out the wife's answer or, in the alternative, for an order that she complete her answer by filing a financial statement and for an order that the wife answer interrogatories which were served upon her counsel. The wife, in turn, applied to sever that part of the husband's petition seeking to set aside the separation agreement; she also sought a stay of any requirement to provide a financial statement or answer interrogatories.

The Manitoba Court of Queen's Bench, Family Division, dismissed the husband's application and allowed the wife's application.

Family Law - Topic 3877

Divorce - Defences or discretionary bars - When divorce refused - Lack of reasonable support arrangements for children - Section 11(1) of the Divorce Act imposed a duty on a court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage - The Manitoba Court of Queen's Bench, Family Division, held that the court need not have before it a statement of financial affairs from both parties in order to discharge its duty under s. 11(1) - The court further held that s. 15 of the Divorce Act, dealing with corollary relief, did not impose such a duty - See paragraphs 19 to 20, 24 to 25.

Family Law - Topic 4124

Divorce - Practice - Severance of issues - A divorce petition also sought to set aside a separation agreement - The respondent wife applied to sever this issue, arguing that if the separation agreement was found valid, the request for corollary relief by the petitioner would fail and divorce would be the only remaining issue - She claimed that if the validity of the agreement was not severed, she would be forced to seek additional relief in areas covered by the agreement, thereby making the litigation prolonged and costlier - The Manitoba Court of Queen's Bench, Family Division, agreed with the wife - See paragraphs 16 to 18, 27.

Family Law - Topic 4203

Divorce - Practice - Interrogatories - When available - A petitioner who had not filed an affidavit as to documents requested a response to interrogatories from the respondent - The Manitoba Court of Queen's Bench, Family Division, held that the request was premature pursuant to rule 31.04 (2) - The court, moreover, held that the interrogatories were abusive, because of the manner in which they were framed (a 25 page standard form inquisition) - See paragraphs 22 to 23.

Family Law - Topic 4252

Practice - Evidence and proof - Maintenance - Inquiry respecting party's finances - [See Family Law - Topic 3877 above].

Family Law - Topic 4252

Practice - Evidence and proof - Maintenance - Inquiry respecting party's finances - The Manitoba Court of Queen's Bench, Family Division, held that Queen's Bench Rule 70.11(3)(a) did not require that if a petitioner in a divorce proceeding filed a financial statement, the respondent must provide one in turn - The rule meant that if such a statement was attached to the petition and the relief sought required it, then the respondent must file such a statement along with his or her answer - See paragraphs 19, 26.

Practice - Topic 3603

Evidence - Affidavits - Contents of - The Manitoba Court of Queen's Bench, Family Division, in divorce proceedings, struck out portions of the petitioner's affidavit that were drafted in the form of a statement of defence, i.e. that contained argument and failed to recite only facts - See paragraphs 5 to 8.

Practice - Topic 3643

Evidence - Affidavits - Sufficiency of - Statement of knowledge of relevant facts - [See Practice - Topic 3603 above].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See Practice - Topic 3603 above].

Practice - Topic 5204

Trials - Severance of issues - [See Family Law - Topic 4124 above].

Cases Noticed:

Sutton v. Sutton (1985), 33 Man.R.(2d) 78, appld. [para. 7].

McDonald v. Sanderson, [1923] 3 W.W. R. 237 (Man. C.A.), refd to. [para. 18].

Peters v. Peters, [1970] 2 O.R. 246 (S.C.), refd to. [para. 18].

Johnson v. Johnson (1986), 50 R.F.L.(2d) 167 (Ont. S.C.), refd to. [para. 18].

Minshall v. Minshall (1974), 16 R.F. L. 397 (Ont. S.C.), refd to. [paras. 18, 20].

Mardynalka v. Kurian Construction Ltd. and Kurian, [1986] 5 W.W.R. 507; 42 Man.R.(2d) 64 (C.A.), refd to. [para. 18].

Klotz v. Klotz, [1971] 1 O.R. 380 (S. C.), refd to. [para. 18].

Bean v. Bean et al., [1972] 2 O.R. 23 (S.C.), refd to. [para. 18].

Investors Syndicate Limited v. Pro-Fund Distributors Ltd. et al. (1980), 12 Man.R.(2d) 104, refd to. [para. 18].

Tearle v. Tearle (1982), 29 R.F.L.(2d) 207 (B.C.C.A.), refd to. [para. 18].

Heron v. Heron (1987), 9 R.F.L.(3d) 41 (Ont. S.C.), refd to. [para. 18].

Horn v. Horn (1987), 49 Man.R.(2d) 301; 11 R.F.L.(3d) 23 (C.A.), refd to. [para. 20].

Reid v. Reid (1976), 26 R.F.L. 69 (Ont. S.C.), refd to. [para. 20].

Alsop v. Alsop (1976), 26 R.F.L. 112 (Ont. C.A.), refd to. [para. 20].

Statutes Noticed:

Divorce Act, S.C. 1986, c. 4, sect. 11 (1)(b) [paras. 19, 24]; sect. 15 [paras. 19, 25].

Rules of Court (Man.), Queen's Bench Rules, rule 4.07(2) [paras. 6-7]; rule 5.05 [paras. 4, 16]; rule 31.04(2) [para. 21]; rule 34.04(2) [para. 4]; rule 35.02(1) [para. 2]; rule 35.03 [para. 4]; rule 39.01(4) [paras. 6-7]; rule 70.11(3) [paras. 2, 19, 26].

Counsel:

Norman S. Gould, for the petitioner;

Jim M. Stoffman, Q.C., for the respondent.

These applications were heard before Monnin, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, whose decision was delivered on July 20, 1989.