O’NEIL v YASKOWICH, 2018 ABQB 599
3.62: Amending pleading
3.65: Permission of Court to amendment before or after close of pleadings
7.10: Judge remains seized of action
7.11: Order for trial
7.5: Application for judgment by way of summary trial
7.6: Response to application
7.7: Application of other rules
7.8: Objection to application for judgment by way of summary trial
7.9: Decision after summary trial
Following the dissolution of their marriage, the parties sought Judgment from the Court regarding the division of matrimonial property by way of a two-day Summary Trial.
Before ruling on the appropriate division of property, Justice Shelley discussed whether the matter could proceed as a Summary Trial pursuant to Part 7, Division 3 of the Rules, being Rules 7.1 to 7.11. Shelley J. applied the two part test set out by the Alberta Court of Appeal in SHN Grundstuecksverwaltungsgesellschaft MBH & Co Seniorenresidenz Hoppegarten – Neuenhagen KG v Hanne, 2014 ABCA 168 (CanLII) and considered (1) whether the Court could decide disputed questions of fact on the Affidavits filed by the parties; and (2) whether it would be unjust to decide the issues in such a way. After discussing some of the complicated and voluminous evidence, Justice Shelley noted that the matter would likely have benefitted from a two week Trial due to the value of the assets at issue, the complex and confusing evidence, the lack of obvious urgency or prejudice, and the significant disagreements between the evidence of the parties. Notwithstanding these concerns, Shelley J. found that at least some of the issues between the parties were appropriate for Summary Trial. Specifically, Justice Shelley ruled on: the Plaintiff’s claimed entitlement to exemptions; whether the Plaintiff had dissipated matrimonial property following separation; the just and equitable distribution of the matrimonial property; and, appropriate child support from the date of separation.
The Plaintiff also requested an Order amending her Statement of Claim for division of matrimonial property to seek an unequal division of property. The Defendant argued that the issue of unequal distribution was first raised by the Plaintiff only 18 days before the Summary Trial and thus objected to the requested amendment. Justice Shelley found that, although the Plaintiff should have realized earlier that the evidence may support a claim for unequal distribution, the Defendant “could not have been unaware of the evidentiary foundation that would support an unequal distribution claim.” The evidence was clearly established at the Summary Trial, was obvious in the previously filed materials, and was within the Defendant’s personal knowledge. For these reasons, Shelley J. permitted the amendment and allowed the claim for an unequal division of property.View CanLII Details