JESKE v JESKE, 2021 ABQB 58
7.1: Application to resolve particular questions or issues
13.1: When one judge may act in place of or replace another
The Court heard an Application to vary 1 of 4 Consent Orders which governed the distribution of matrimonial property. Following the Court’s endorsement of 3 of these Consent Orders, Mr. Jeske passed away. Ms. Jeske then proceeded to collect her deceased ex-husband’s pension pursuant to her survivorship rights. She did not divide these payments with her son Nathan Jeske despite the Order providing Ms. Jeske with the option to do so. Nathan then brought an Application to vary the Consent Order to divide Mr. Jeske’s pension between himself and Ms. Jeske.
The issues before the Court were whether it was appropriate to vary the previously granted Consent Order to divide the pension, and whether Justice Neufeld was barred from doing so pursuant to the doctrine of functus officio.
In response to the Application to vary the Consent Order, His Lordship noted that Rule 13.1 only allows a Judge to vary the Order of another Judge if that Judge dies, ceases to hold office or if it is inconvenient, improper or impossible for that other Judge to act. Unless there are errors in drawing up the Order, or if the Order does not manifestly express the Court’s intent, a final Order may not be reopened by another Judge. Justice Neufeld found that Rule 13.1 could not operate to vary this Order since it granted Ms. Jeske an entitlement to divide the pension but did not create an obligation to do so. Since the redistribution clause was not an obligation, the Court found this to be a final Order which could not be varied due to the doctrine of functious officio.
Despite being a moot point given the Court’s determination pursuant to Rule 13.1, Justice Neufeld also addressed Ms. Jeske’s cross-Application under Rule 7.1 for an Order declaring that the Court had no authority to vary the Consent Order. His Lordship applied similar reasoning to this argument in that, although the Consent Order permitted Ms. Jeske to seek a subsequent Order amending the distribution of the pension, this was still a final Order which could not be interfered with since there was no obligation to act on this clause. As a result, the Court dismissed the Application.View CanLII Details