SORIANO v BACALLA, 2021 ABQB 195
1.5: Rule contravention, non-compliance and irregularities
3.58: Status of counterclaim
3.60: Application of rules to counterclaims
3.68: Court options to deal with significant deficiencies
4.33: Dismissal for long delay
The Applicant husband applied to dismiss a spousal support “counterclaim” advanced by his wife for long delay pursuant to Rule 4.33 so that he could proceed with a desk Application for divorce. Alternatively, he asked for the spousal support issue to be severed and for leave to proceed with the desk Application divorce.
The wife’s “counterclaim” was a request in her Statement of Defence for, “as Counterclaim, plaintiff be ordered to support his (2) children and defendant pursuant to the Philippine Law.” The wife did not serve and file a separate Counterclaim pursuant to the Rules.
Feth J. considered that although the wife did not apply to cure the irregularity with her pleading, that Feth J. on his own motion could cure the irregularity under Rule 1.5 if doing so would cause no irreparable harm to the husband.
The Applicant husband treated the wife’s Statement of Defence as though it had included the “counterclaim” for spousal support so there would be no irreparable harm if the Court treated the wife’s pleading as a combined Statement of Defence and Counterclaim.
His Lordship then considered if he should dismiss the “counterclaim” for long delay pursuant to Rule 4.33. Rules 3.58 and 3.60 allow the 3-year drop dead Rule to apply to counterclaims. However, a Statement of Defence cannot be “dismissed” for long delay, it must be struck out under Rule 3.68. On this basis, an Application to dismiss the “counterclaim” would fail. Feth J. then considered what would happen if he first cured the irregularity with the wife’s pleading, making it a proper Counterclaim, and then determined if it should be dismissed for long delay.
The wife had not taken any steps to significantly advance the claim for spousal support since filing her Statement of Defence over six years ago. However, dismissal for delay does not prevent a party from commencing a second Action for the same cause if the party is within the applicable limitation period or if no limitation period applies. Justice Feth noted that there is no limitation period for a divorce Action or a spousal or child support Application, and as such, it would be inappropriate to dismiss the “counterclaim” for long delay because it would not preclude the wife from commencing a new Action, which would invite the risk of unnecessary expense and delay.
The husband indicated that he wished to move on with his life and re-marry. The wife did not respond to or appear at the Application. The couple’s two children were adults and as such, issues of custody, access and parenting issues were moot. In the circumstances, Feth J. was satisfied that the wife and children would not be disadvantaged if divorce was severed from the spousal support issue, and the Court allowed the husband to proceed with a desktop Application for divorce.View CanLII Details