The Plaintiff applied for an interim distribution of matrimonial property and an Order directing the Defendant to provide responses to Undertakings. The Defendant cross-applied pursuant to Rules 4.31 and 4.33 to dismiss the Plaintiff’s claim for delay. The Plaintiff commenced the Action by the filing of a Statement of Claim for Divorce on September 2, 2016. The Defendant never filed a Defence but Questioning of the Defendant was conducted. There was very little progress since Questioning.

The Court noted that there is discretion on the part of the Court to deny a Delay Application even when the moving party has established inordinate delay and significant prejudice. One circumstance which has been recognized as justifying the denial of a Delay Application is where the limitation period applicable to the underlying claim has not yet expired.

In the Action, the limitation period applicable to the Plaintiff’s matrimonial property claim is two years from the date of the divorce judgment pursuant to the Matrimonial Property Act. No Divorce Judgment had yet been issued and thus, the limitation period for the matrimonial property claim had not yet started to run.

The Plaintiff advised that if the Action were dismissed for delay, she would file and serve a new action for the same relief. The Court noted that she would be entitled to do so.

The Court denied the Defendant’s Cross-Application to dismiss for delay. Sending the parties back to the start of litigation would not be in the interests of justice or fit the overarching purpose of the Alberta Rules of Court as stated in Rule 1.2.