HOLMES v HOLMES, 2023 ABKB 1
6.25: Preserving or protecting property or its value
12.7: Starting proceeding under Divorce Act (Canada)
12.8: Starting proceeding under Matrimonial Property Act
12.9: Starting combined proceeding
Prior to divorcing, the Parties jointly owned their matrimonial home and assets. The Respondent incurred credit card debt that had been registered as a writ against title to the matrimonial home. The Applicant was concerned that the Respondent would continue to incur debt and that his creditors would place further chargers on title to the matrimonial home. Accordingly, the Applicant sought interim relief under section 9 of the Matrimonial Property Act, RSA 2000, c M-8 (the “MPA”).
The Applicant sought the transfer of the matrimonial home title to her along with a preservation Order directing her not to sell the property. Justice Feth dismissed the Application citing three major concerns: (a) no matrimonial property Action had been filed by the Applicant, (b) the Applicant did not have permission from Family Docket Court to apply for interim distribution of property, and (c) the Respondent may not have received proper notice of the relief sought by the Applicant.
The Court noted that Rule 12.8 prescribes that a proceeding under the Family Law Act, SA 2003, c. F-4.5 (the “FLA”) for division of family property must be started by Statement of Claim. This requirement is further codified in the case law and section 4 of the MPA. Rule 12.7 prescribes that a divorce proceeding under the Divorce Act, RSC, 1985 c.3 (the “Divorce Act”) must be started by Statement of Claim. The Applicant, however, filed only a Statement of Claim for divorce under the Divorce Act, which offers relief for spousal support, child support, and custody and access to children. Justice Feth found that the Statement of Claim did not address the division of family property under the FLA.
Nonetheless, the MPA and Rule 12.9 gave Feth J. the jurisdiction to deal with the division of matrimonial property. Rule 12.9 states that a proceeding that is both a proceeding under the FLA and Divorce Act may be started by filing a claim for divorce and division of family property as long as the claims are set out separately into one Statement of Claim. Further, Rule 6.25 preserves and protects property generally, and Rule 6.25(1)(c) allows the Court to order the sale of a property and payment of the proceeds into Court.
However, the Applicant did not seek relief under Rule 6.25 nor did she apply before Feth J. to amend her Statement of Claim to add an Action for the division of matrimonial property. Absent a Statement of Claim for division of matrimonial property, the Court was precluded from transferring title to the matrimonial home under section 9 of the MPA.View CanLII Details