MACIBORSKI v MACIBORSKI, 2018 ABCA 297
Watson, slatter and Bielby JJA
12.48: Availability of application for summary judgment
12.49: Evidence in summary trials
The Appellant father appealed the Decision of Gill J. in which His Lordship declined to alter a Consent Order previously granted by Ross J. pertaining to child and spousal support payments (the “Consent Order”). The Consent Order directed the Appellant to pay to the Respondent mother what was described as “uncharacterized payments in the sum of $5,000” on the first day of each month of January, February, March, and April 2018 (the “Uncharacterized Payments”). The Consent Order additionally provided that the Consent Order was to be reviewed on March 6, 2018, part way through the term of the Uncharacterized Payments.
The Appellant argued that additional evidence needed to be considered when classifying the Uncharacterized Payments. The Majority determined that what Gill J. did, in declining to alter the Consent Order, was uphold the Consent Order of Ross J. which, by its terms, applied for four months as indicated. The payment schedule of the Consent Order had not yet concluded when Gill J. opined on the issue. The Majority found that nothing in the Consent Order impacted the ability of a future Trial Judge to consider the Uncharacterized Payments when making an overall assessment on support payments, and that it was at the future evidential hearing where the parties would have a fair opportunity to provide evidence for a proper Decision.
The Majority emphasized that while Rules 12.48 and 12.49 allow for Summary Trials, the Rules do not allow Summary Judgment on child and spousal support. The Majority noted that the Supreme Court of Canada has repeatedly directed that judicial exercises of discretion in family law matters are entitled to deference from the Alberta Court of Appeal. The Majority concluded by stating that it was not appropriate for the Court of Appeal to express an opinion about the merits of the evidence in this case, and the Court of Queen’s Bench was better equipped and jurisdictionally empowered to adjudicate family law cases on contradictory evidence.View CanLII Details