DANIS-SIM v SIM, 2023 ABKB 637


1.2: Purpose and intention of these rules
4.31: Application to deal with delay
4.33: Dismissal for long delay

Case Summary

The Applicant in divorce proceedings applied for, among other things, a dismissal of the Respondent’s June 2017 Application to vacate arrears of child support (the “June 2017 Application”) for delay in accordance with Rules 4.31 and 4.33.

The Court reviewed the jurisprudence for Rules 4.31 and 4.33 and found that it was clear that the delay rules apply to divorce and other family law proceedings and although Rule 4.33 is mandatory, Courts in Alberta have repeatedly chosen not to apply the delay Rules on Applications under the Divorce Act, RSC 1985, c 3.

The Court accordingly noted that although more than three years had passed without a significant advance in the June 2017 Application, it declined to dismiss for long delay for the following reasons: (1) the ability of the Respondent to restart the Application would not prevent her from initiating a fresh Application and restarting the process again; (2) the principle of res judicata does not extend to Applications that are dismissed for long delay; (3) dismissing for delay when the Respondent could simply restart the process would not be in the interests of justice, with reference to Rule 1.2; and (4) either party could have set the June 2017 Application down for further adjudication, and it would accordingly run counter to the fundamental principles of parental support obligations to dismiss the June 2017 Application.

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