Thompson v. Thompson, (2007) 434 A.R. 250 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 10, 2007
• Jurisdiction: Alberta
• Citations: (2007), 434 A.R. 250 (QB);2007 ABQB 715

Thompson v. Thompson (2007), 434 A.R. 250 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. DE.046

William Charles Thompson (applicant) v. Edith Marlene Thompson (respondent)

(4810 008078; 2007 ABQB 715)

Indexed As: Thompson v. Thompson

Alberta Court of Queen's Bench

Judicial District of Red Deer

Read, J.

November 22, 2007.

Summary:

The parties were married in 1974 and separated in 1986. The husband left the matrimonial home in 1991. There were two children of the marriage, 12 and eight years old at the time of separation. The wife commenced a Petition for Divorce and a matrimonial property action in 1988. The actions were consolidated in April 2000, and ultimately went to trial in October 2006, over the wife's objections. A year passed after the matrimonial property trial and the issues of child and spousal support had still not gone to trial. The husband was awarded the former matrimonial home, but the wife had not yet provided him with a transfer. Nor had the parties obtained a desk divorce, notwithstanding the permitted severance of the corollary relief issues from the divorce. In September 2007, the husband applied to strike the corollary relief, under rule 244.1 of the Alberta Rules of Court.

The Alberta Court of Queen's Bench struck the corollary relief, in the interests of justice. The wife delayed inordinately.

Editor's Note: A related case is reported [2006] A.R. Uned. 902 (originally cited as [2006] A.R. 404; 2006 ABQB 796).

Family Law - Topic 962

Husband and wife - Actions between husband and wife - Practice - Delay - Effect of - [See third Family Law - Topic 3992 ].

Family Law - Topic 2230

Maintenance of wives and children - Interim relief - Practice - In September 2007, the husband in a divorce action brought an application under rule 244.1 of the Alberta Rules of Court to strike the corollary relief (child support and spousal support) requested in a Petition for Divorce filed by the wife in 1988 - As an aside, the Alberta Court of Queen's Bench noted that the wife "contemplated dealing with the issue of retroactive support in a lengthy special chambers application. Such a step is inappropriate and is specifically not permitted. These parties need a final rather than an interim decision. Final decisions are not available in special chambers. Corollary relief issues are to be determined at a trial unless the parties agree in writing to proceed by summary trial, on a trial on a question of law based upon an agreed statement of facts, or by binding Judicial Dispute Resolution" - The wife was not to make further interim applications in the matter without leave - See paragraph 6.

Family Law - Topic 2243

Maintenance of wives and children - Jurisdiction - Interim relief - [See Family Law - Topic 2230 ].

Family Law - Topic 2363

Maintenance of wives and children - Defences or bars - Limitation period - [See first Family Law - Topic 3992 ].

Family Law - Topic 2365

Maintenance of wives and children - Defences or bars - Public policy - [See second and third Family Law - Topic 3992 ].

Family Law - Topic 2367

Maintenance of wives and children - Defences or bars - Delay or estoppel - [See third Family Law - Topic 3992 ].

Family Law - Topic 3992

Divorce - Corollary relief - General - Delay in application - Effect of - In September 2007, the husband in a divorce action brought an application under rule 244.1 of the Alberta Rules of Court to strike the corollary relief (child support and spousal support) requested in a Petition for Divorce filed by the wife in 1988 - The Alberta Court of Queen's Bench considered that rule 244.1 used the mandatory term "shall", but that it was silent with respect to its applicability to divorce actions - Further, the court noted that the Divorce Act did not prescribe a limitation period for a corollary relief proceeding for spousal or child support - Although rule 244.1 afforded the court a discretion, the court recognized that "... the rationale remains that the lack of a limitation period puts in question the utility of dismissing an action where the claims can simply be recommenced" - After noting public policy difficulties with the application of rule 244.1 to a divorce and corollary relief claim, and based on the case law reviewed, the court concluded that while dismissal under rule 244.1 was available in divorce actions, the application of the Rule was subject to the practical consideration that a dismissed action could simply be recommenced - "For this reason alone, the mandatory nature of rule 244.1 to divorce actions may be questioned" - See paragraphs 8 to 11.

Family Law - Topic 3992

Divorce - Corollary relief - General - Delay in application - Effect of - In September 2007, the husband in a divorce action brought an application under rule 244.1 of the Alberta Rules of Court to strike the corollary relief (child support and spousal support) requested in a Petition for Divorce filed by the wife in 1988 - The Alberta Court of Queen's Bench considered that there were public policy issues in certain cases which would require that corollary relief claims in divorce actions not be dismissed for want of prosecution - As an example, the court noted that s. 11(1)(b) of the Divorce Act provided that it was the duty of the court to satisfy itself that reasonable arrangements have been made for child support and, if such arrangements have not been made, to stay the granting of the divorce - "If the court were able to sever and dismiss corollary relief claims on the basis of delay under rule 244.1, but allow the divorce action to proceed, the potential leverage intended by s. 11(1)(b) of the Divorce Act would be negated. ... . Striking corollary relief claims while allowing the divorce to go through would potentially work an injustice with respect to the young children. In such cases the public policy represented by s. 11(1)(b) could impact a court's decision to strike part of a claim" - See paragraph 12.

Family Law - Topic 3992

Divorce - Corollary relief - General - Delay in application - Effect of - In September 2007, the husband in a divorce action brought an application under rule 244.1 of the Alberta Rules of Court to strike the corollary relief (child support and spousal support) requested in a Petition for Divorce filed by the wife in 1988 - The Alberta Court of Queen's Bench struck the corollary relief, in the interests of justice - The wife's delay in moving the matter to trial was "extremely long" - On the facts, public policy issues which militated against striking out a support claim, were significantly diminished - The "children" were now adults, 33 and 29 - The wife's delay continued a year after trial of the matrimonial property issues, notwithstanding the trial judge's advice to her that the matters needed to be resolved quickly - Moreover, she denied the husband his portion of the property awarded in the matrimonial property judgment - "Given the ages of the children, the means of the former wife, and what I would characterize as her shocking, continued delay and failure to abide by the terms of the judgment", the court concluded that public policy issues did not play an important role in the application - The court was mindful, as well, that if it dismissed the claim for corollary relief, it was likely that she could simply recommence a claim for relief "by some means".

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - In September 2007, the husband in a divorce action brought an application under rule 244.1 of the Alberta Rules of Court to strike the corollary relief (child support and spousal support) requested in a Petition for Divorce filed by the wife in 1988 - The wife was now 71, and the husband 74 - In determining the issue of retroactive spousal support, the Alberta Court of Queen's Bench noted the"important consideration" that the wife was awarded "significant" property in the matrimonial property trial - The court had also determined that it would serve the interests of justice to strike the wife's claim for retroactive child support, given that the children were well into adulthood (33 and 29) - A further consideration was that during the long delay, the wife held the bulk of the matrimonial property, including the mortgage-free home and rental properties, and had failed to transfer the assets that were the husband's as a result of the matrimonial property division - The wife failed to follow up after serving a Notice to Disclose (income) in 1993, 2000 and 2005 - The court struck her claim for spousal support "in accordance with the mandatory direction in Rule 244.1" - It would be "inequitable and unjust" to require the husband to face a retroactive lump sum spousal support payment - The wife delayed inordinately - The public policy reasons which militated against striking a child support claim were diminished in relation to spousal support claims - See paragraphs 22 to 27.

Family Law - Topic 4001.1

Divorce - Corollary relief - Maintenance and awards - Retroactive awards - In September 2007, the husband in a divorce action brought an application under rule 244.1 of the Alberta Rules of Court to strike the corollary relief (child support and spousal support) requested in a Petition for Divorce filed by the wife in 1988 - Only a claim for retroactive (not ongoing) child support existed as both children (born in 1974 and in 1978) were currently 33 and 29 - The husband first had notice of the claim for child support in 1988, but continued to support the family until he left the matrimonial home in 1991 - The wife filed Notice to Disclose (income) in January 1993 (children were 19 and 15), in 2000 (children were 25 and 21) and in 2005 (children were 29 and 25), with no response from the husband - The Alberta Court of Queen's Bench held that rule 244.1 obliged it to strike the claim for retroactive child support - The wife made no application to require a response to any Notice to Disclose and made no interim application for support - Any failure by the husband to provide income disclosure was not an impediment to the wife's moving forward - The wife took no steps which materially advanced her claim for corollary relief for more than five years - There were no policy or practical reasons for not striking out the claim - See paragraphs 15 to 23.

Family Law - Topic 4088

Divorce - Corollary relief - Incidental matters - Interim relief - General - [See Family Law - Topic 2230 ].

Family Law - Topic 4106

Divorce - Practice - Rules of court - Alberta - [See first and second Family Law - Topic 3992 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See third Family Law - Topic 3992 ].

Practice - Topic 2244

Pleadings - Striking out pleadings - Bars - Delay - [See third Family Law - Topic 3992 ].

Cases Noticed:

Rowe v. Rowe, [2007] Northwest Terr. Cases 78; 2007 NWTSC 78, refd to. [para. 8].

Alberta Government Telephones v. Arrow Excavators and Trenchers (1972) Ltd. (1989), 99 A.R. 25; 62 D.L.R.(4th) 188 (C.A.), dist. [para. 9].

Wittenburg v. Wittenburg, [2003] A.R. Uned. 100; 2003 ABQB 154, refd to. [para. 10].

L.J.W. v. T.A.R. - see D.B.S. v. S.R.G.

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, refd to. [para. 16].

Munro v. Munro, [1997] O.A.C. Uned. 475 (C.A.), refd to. [para. 22].

R. v. R., [2000] O.T.C. 596; 10 R.F.L.(5th) 88 (Sup. Ct.), refd to. [para. 22].

Corbeil v. Corbeil (2001), 286 A.R. 330; 253 W.A.C. 330 (C.A.), refd to. [para. 22].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 11(1)(b) [para. 12].

Rules of Court (Alta.), rule 244.1 [para. 1].

Counsel:

J.D. Boulton, for the applicant;

R. Forsyth-Nicholson, for the respondent.

This application was heard on September 10, 2007, before Read, J., of the Alberta Court of Queen's Bench. On November 22, 2007, the court filed the following Memorandum of Decision at Edmonton, Alberta.