AUBIN v PETRONE, 2020 ABQB 708
9.13: Re-opening case
The Applicant made an Application to vary a previous Decision of the Court pursuant to Rule 9.13. The previous Decision made in March of 2020 had resulted in charges being placed on shares and real property owned by the Applicant’s former husband in order to secure payment of a matrimonial property Judgment (the “March 2020 Decision”).
The basis for the Application was a concern regarding the existence of “gaps” in the March 2020 Decision, which, by virtue of the individual Respondent’s conduct, could render the matrimonial property Judgment meaningless.
Justice Khullar set out the following factors which the Court should consider in exercising its discretion to modify a Judgment pursuant to Rule 9.13: the desirability of avoiding unnecessary Appeals; the desirability of a fully developed record for the purposes of a potential Appeal; the need for certainty in legal proceedings; that errors to be corrected should be objectively demonstrable; Rule 9.13 is not a vehicle for reconsideration of a Judgment; and that Rule 9.13 demands a high threshold to avoid Applications which are, in effect, a “second kick at the can”.
Justice Khullar was satisfied that the threshold to consider a variation had been met. Her Ladyship emphasized that this did not mean that each modification sought was granted, but rather that the Court had jurisdiction to consider the Applicant’s arguments. Her Ladyship then considered each proposed variation individually.
With respect to the injunction proposed by the Applicant, Justice Khullar held that this relief constituted a new issue and new remedy, which went beyond the scope of an Application under Rule 9.13. With respect to clarification sought by the Applicant regarding the nature of a previous Order imposing charges on the Respondent’s property, Justice Khullar held that no further clarification was necessary. In regard to proposed variations to the previously imposed payment plan, Justice Khullar accepted the variation that constituted a “slight modification” but rejected the proposed variation which would make Trial Costs, Appeal Costs, and interest thereon payable at the time of the first payment. Her Ladyship held that this would be a “fundamental change to the order, for which there [was] no compelling basis.”
Justice Khullar rejected the proposed variation to the events that would trigger the Applicant’s ability to enforce the charges. Her Ladyship found that there was no authority under the Matrimonial Property Act, RSA 2000, c M-8 to grant the proposed variation, and furthermore, that the current triggering events had been upheld by the Alberta Court of Appeal. There was therefore no authority to grant this proposed variation under Rule 9.13.
Lastly, Justice Khullar agreed to vary the March 2020 Decision by extending the restriction preventing the individual Respondent from declaring bankruptcy. Her Ladyship did so because it was found that this restriction was still required in order to protect the Applicant from unfair financial risk.View CanLII Details