KUZUCHAR v KUZUCHAR, 2023 ABKB 135
5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports
12.50: Divorce without appearance by parties or counsel
This Decision arose from a 2-day trial of a divorce Action. The Parties had mixed success on the three issues presented at Trial, namely, the finalization of: (1) the distribution of the matrimonial property, (2) section 7 expenses of the Federal Child Support Guidelines, SOR/97-175, and (3) the recalculation of child support.
In determining the issues, Marion J. reviewed the procedural background of the Action. He noted that the Plaintiff had applied for divorce under Rule 12.50 twice. The first time in 2020, when her Application was rejected for not incorporating a parenting plan in the proposed form of Divorce Judgment and Corollary Relief Order, and for not obtaining her husband’s consent. The second time in 2021, when she obtained leave of the Court to apply for divorce under Rule 12.50 without the need of her husband’s consent.
Rule 12.50 lets Parties apply for Judgment of Divorce and pursue the corollary relief claimed in their Statement of Claim or Counterclaim. More importantly, with the Court’s permission, Rule 12.50 enables one Party to apply for a Divorce Judgment and corollary relief without the consent of the other Party.
However, Marion J. found that the parenting agreement attached to the Plaintiff’s 2021 Application differed from the one adduced as evidence at Trial. The 2021 parenting plan was never signed or agreed to by the Defendant, while the one presented at Trial indicated that the Defendant had consented to it. Justice Marion found that the Plaintiff was authorized to seek a Divorce Judgment without the Defendant’s consent, but that ability did not extend to corollary relief and the parenting agreement. Therefore, Marion J. held that if the Defendant did not agree with the parenting agreement proposed by the Plaintiff included in the Divorce Judgment, he could apply to vary it, otherwise he was deemed to have accepted it.
Further, Marion J. had to determine whether certain shares of the Defendant in his corporation should be divided between the Parties. Justice Marion found that the Defendant did not provide appropriate disclose of the corporation’s assets. The Defendant attached to his written argument an opinion letter from his accountant which was not presented as evidence at Trial nor was it in compliance with Rules 5.34 and 5.35. Since the opinion letter was not an expert’s report presented in Form 25 as required by Rule 5.34, nor served in the sequence provided for by Rule 5.35, the Court ignored the opinion letter. Nonetheless, Marion J. held that it was not just equitable to divide the shares, and, in any event, found that they had no value.View CanLII Details