MARINO (RE), 2019 ABQB 903


4.34: Stay of proceedings on transfer or transmission of interest

Case Summary

Mr. and Ms. Marino were spouses involved in matrimonial litigation, including competing claims under the Matrimonial Property Act, RSA 2000, c M-8 (the "MPA”). Mr. Marino was also an undischarged bankrupt under the Bankruptcy and Insolvency Act, RSC 1985, c-B-3 (the “BIA”). Ms. Marino had filed a Statement of Claim for divorce and division of matrimonial property and sought an unequal division of matrimonial property in her favour under the MPA (the “Claim”).

Master Prowse noted that Ms. Marino’s Claim against Mr. Marino’s property was stayed pursuant to Rule 4.34(1) which states that, if at any time in an Action prior to Judgment, the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the Action is stayed until an Order to continue the Action by or against the other person has been obtained (the “Stay”).

Master Prowse reviewed the relevant provisions of the MPA to determine whether Ms. Marino’s Claim was provable in bankruptcy and therefore releasable from the Stay. Master Prowse concluded that it was not and accordingly refused to lift the Stay. Given this conclusion under Rule 4.34(1), Master Prowse did not need to consider whether the Claim was also stayed pursuant to the BIA.

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