In June 2017, the Respondent filed an Application to confirm that she owed no child support arrears after the Appellant registered a Divorce Judgment and Corollary Relief Order declaring arrears were owing (the 2017 Application). In August 2017, an Interim Order was granted providing some relief. Neither party sought further Court assistance until May 2022, when the Appellant applied to dismiss the 2017 Application for long delay under Rule 4.33 (the “4.33 Application”).

The Chambers Judge refused to dismiss the 2017 Application (the “Decision”), suggesting Alberta courts had chosen not to apply Rule 4.33 where the Respondent could file a new Claim under the Divorce Act. The Appellant appealed the Decision. The Appeal was dismissed.

The Court found that the Chambers Judge erred in her interpretation of Rule 4.33. Pursuant to Rule 12.34, Rule 4.33 does apply in the family law context. The Court further found that the Chambers Judge erred in suggesting that Judges have discretion to disregard Rule 4.33 in the absence of an applicable limitation period. While the absence of an applicable limitation period may be considered under Rule 4.31, which affords the Court discretion to dismiss all or any part of a claim if there is delay that has resulted in significant prejudice to a party, the plain language of Rule 4.33 affords Judges no such discretion.

However, having concluded that Rule 4.33 is designed to dismiss Actions, not Applications within an Action, and cannot be used to reverse an existing Order, the Court held that the Decision to dismiss the Rule 4.33 Application was correct, and that the 2017 Application should proceed for final determination.