Zimmerman v. Buss, (2015) 323 Man.R.(2d) 216 (CA)

• Judge: Beard, Burnett and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 24, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 323 Man.R.(2d) 216 (CA);2015 MBCA 106

Zimmerman v. Buss (2015), 323 Man.R.(2d) 216 (CA);

      657 W.A.C. 216

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. DE.003

Heather Lee Zimmerman (petitioner/respondent) v. Douglas Gordon Buss (respondent/appellant)

(AF 15-30-08351; 2015 MBCA 106)

Indexed As: Zimmerman v. Buss

Manitoba Court of Appeal

Beard, Burnett and Mainella, JJ.A.

November 24, 2015.

Summary:

A wife commenced an action by way of statement of claim to have a separation agreement enforced. She became concerned about an investment liquidated by the husband and brought a motion under Queen's Bench Rule 49.09, seeking specific performance of the separation agreement, an order that the husband pay an amount equal to the November 2009 value of the liquidated investment on the joint debt, and solicitor-client costs.

The Manitoba Court of Queen's Bench (motions judge) decided the motion under Queens' Bench Rule 49.09, stating that she was granting specific performance, judgment in the amount of $145,128 and awarding costs of $11,000 on a solicitor-client basis. The husband appealed, arguing that the motions judge erred in law in deciding the motion under rule 49.09, and in granting specific performance, a money judgment and costs on a solicitor-client basis.

The Manitoba Court of Appeal allowed the appeal and set aside the order below. The motions judge erred in deciding the motion under rule 49.09 which dealt with failure to comply with accepted offers to settle. In any event, an order of specific performance was not available because the investment had already been liquidated. The motions judge also erred in granting a money judgment in favour of the wife. If a money order had been appropriate, that order should have directed that the money be applied to the debt, not that it be paid to the wife. Because the order below was set aside, the court found it unnecessary to deal with the costs issue.

Family Law - Topic 3261

Separation agreements, domestic contracts and marriage contracts - Enforcement - General - [See Practice - Topic 9861 ].

Practice - Topic 9854

Settlements - Enforceability - General - [See Practice - Topic 9861 ].

Practice - Topic 9861

Settlements - Offers - Acceptance - A wife commenced an action to enforce a separation agreement - Because she became concerned about an investment liquidated by the husband, she brought a motion under Queen's Bench Rule 49.09, seeking, inter alia, specific performance of the separation agreement - A motions judge granted specific performance and other relief - The husband appealed - The Manitoba Court of Appeal allowed the appeal - The motions judge erred in deciding the motion under rule 49.09 - The type of agreement that came within rule 49 was an agreement that settled all or some of the issues in litigation that was commenced prior to the making and accepting of the offer of settlement that constituted the agreement being enforced - Here, the litigation to enforce the separation agreement was commenced by statement of claim filed more than three years after the date of the separation agreement - It could not and did not constitute an accepted offer in the litigation within rule 49.09 - There were other summary proceedings that the wife could have pursued - In any event, specific performance was not available because the investment had already been liquidated.

Specific Performance - Topic 506

When available - General principles - Contrac-tual obligations - [See Practice - Topic 9861 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

Pearson v. Plester et al. (1989), 62 Man.R.(2d) 142 (C.A.), refd to. [para. 14].

Poste v. Mitchell-Poste (2009), 242 Man.R.(2d) 310; 2009 MBQB 201, refd to. [para. 14].

Statutes Noticed:

Queen's Bench Rules (Man.) - see Rules of Court (Man.), Queen's Bench Rules.

Rules of Court (Man.), Queen's Bench Rules, rule 49.09 [para. 8].

Counsel:

M.U. Kramer, for the appellant;

C.B. Shefman, for the respondent.

This appeal was heard on November 24, 2015, before Beard, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Beard, J.A., on November 24, 2015.