12.49: Evidence in summary trials
13.6: Pleadings: general requirements

Case Summary

The estate of a husband in a matrimonial property Action sought division of matrimonial property after his death. The wife opposed the Application and sought an alternate division of their property.

Loparco J. noted that although the parties separated in 2006, the proceedings were still ongoing at the time of the husband’s death in 2016. The parties had made various Applications against each other, but the presiding Justice had determined that the final division of their property could not be adjudicated in Chambers. The matter of separating the parties’ matrimonial assets was then directed to be heard by Loparco J. at Summary Trial based on Affidavit evidence, as the parties had not sought to adduce oral evidence pursuant to Rule 12.49.

Loparco J. considered the parties’ competing Applications respecting the division of their property. The husband’s estate argued that the wife could not seek an unequal division of matrimonial property because she had not filed a Counterclaim seeking it on the basis that, pursuant to Rule 13.6(2), pleadings must include the facts upon which each party relies as well as the remedy claimed by each party. However, Loparco J. also explained that the Court may distribute matrimonial property unequally pursuant to section 7(4) of the Matrimonial Property Act RSA 2000, c M-8, even if it has not been specifically pleaded by a party. However, the wife failed to establish that an unequal division was necessary. As such, Loparco J. assessed and divided the parties’ matrimonial property on an equal basis.

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