KLEIN v WOLBECK, 2016 ABQB 28
1.2: Purpose and intention of these rules
1.5: Rule contravention, non-compliance and irregularities
5.33: Confidentiality and use of information
6.11: Evidence at application hearings
6.3: Applications generally
10.51: Order to appear
10.53: Punishment for civil contempt of Court
12.18: Response to proceeding under Family Law Act
12.43: Application of Part 6, Division 1
12.44: Application within course of proceeding
12.51: Appearance before the Court
13.18: Types of affidavit
The Plaintiff, Klein, sought to terminate partner support payable to the Defendant, Wolbeck, and Wolbeck sought an Order respecting certain lands held as a co-tenant with Klein. Both Applications involved the same parties, the same relationship, overlapping issues and overlapping evidence. There were two preliminary evidentiary Applications before Renke J., one of which was whether materials from other proceedings between the parties were admissible in either Application. Justice Renke noted that Court Orders, filed Affidavits and transcripts of Questioning on Affidavits are matters of public record and may be referred to in another Application; the “implied undertaking” rule in Rule 5.33 does not apply to these materials. Renke J. held that information disclosed in prior litigation between these parties or in one Application should be admissible in the other Application.
The second evidentiary issue was whether hearsay was admissible. Renke J. noted that Klein’s Application did not fall within the types of Application in paragraph 1 of Family Law Practice Note 2 (as it then was); hence, the Rules governing Affidavits for Klein’s Application fell under Rules 12.43(1) and (2), 6.11 and 13.18. If the Applications were not “final” Applications, Rule 13.18(3) would not be engaged and hearsay would be permitted. Wolbeck’s Application sought a final determination of rights, but Justice Renke held that evidence admissible through an exception to the hearsay rule is admissible even in an Application falling under Rule 13.18(3). If admissible through an exception to the hearsay rule, the evidence may be proffered by an Affiant based on his or her knowledge of the third-party information.
Wolbeck’s Affidavit sought relief for, amongst other things, retroactive child support, financial disclosure, retroactive partner support, and Costs; however, Renke J. determined that there was no Cross-Application properly before the Court respecting retroactive child support or partner support. Despite Rules 1.2(1) and 1.5, Justice Renke considered the requirement to provide notice of claimed relief through formal documents contemplated by the Rules of Court. Justice Renke held that the claims for relief should have been set out in the appropriate form, as required by Rules 6.3(2) and 12.44. The claims for relief were not proper components of an Affidavit under Rule 13.18 and Rule 12.18(4).
Regarding spousal support, Renke J. confirmed that any determination made respecting the duration of Klein’s obligation to pay support did not extinguish any right that Wolbeck may have to recover retroactive amounts. Citing Rule 12.51, Renke J. observed that the parties did not provide any argument as to whether a final decision could not or should not be rendered in the Application for spousal support. Klein also raised an issue with respect to Wolbeck’s contravention of a Court Order, arguing that Wolbeck was in contempt. However, Renke J. ascertained that Klein was effectively seeking to impose a penalty on Wolbeck for contempt without having followed the requisite procedure under Rule 10.51(1). The remedy sought by Klein fell within Rule 10.53(d)(iii). Justice Renke declined to impose a contempt penalty on Wolbeck.View CanLII Details