SMIGELSKI v SMIGELSKI, 2015 ABCA 320
PICARD, PAPERNY and ROWBOTHAM JJA
7.1: Application to resolve particular questions or issues
The Appellant wife and the Respondent husband were engaged in an Action for divorce and division of matrimonial property. One of the issues in the Action was the validity and scope of a pre-nuptial agreement between the parties. Upon the husband’s Application, a Chambers Judge granted an Order, under Rule 7.1(1)(a), directing a Trial of a preliminary issue to be held on the validity and scope of the pre-nuptial agreement. The wife appealed the Order.
The Court of Appeal noted the three grounds under Rule 7.1(1)(a) that allowed a Court to order an issue to be tried separately before Trial: disposing of all or part of a Claim; substantially shortening the Trial; or saving expense. The Court stated that a Trial “should not be split unless the savings are clear or at least probable”. Further, “[s]plitting Trials is the exception, not the rule”. While savings are clear and probable in some cases involving pre-nuptial agreements, they are not as clear and probable when issues overlap.
In this case, the Court of Appeal found that there was significant overlap between the pre-nuptial agreement issue and the rest of the Action. Therefore, the savings would not be meaningful. Accordingly, the Court of Appeal held that the Chambers Judge’s Decision was unreasonable, and the Appeal was allowed.View CanLII Details