STARK v STARK, 2026 ABKB 632

The Applicant applied pursuant to Rule 4.33 to dismiss the Respondent’s Counterclaim for matrimonial property division for long delay. The Applicant had commenced the Action for divorce and division of matrimonial property in 2015, and the Respondent filed a Counterclaim in 2016. The Respondent died in October 2024, before the matrimonial property dispute was resolved, and his personal representative opposed the Application.

The Court first considered whether the Respondent’s death prevented the Rule 4.33 Application from proceeding. Rule 4.34 automatically stays an Action where a party’s interest or liability is transferred or transmitted by death until an Order to continue is obtained. However, Justice Akgungor held that an automatic stay pursuant to Rule 4.34 was not a stay “by Order” within the exception in Rule 4.33(2)(a), and the period during which the automatic stay operated was not deducted from the period of delay. Accordingly, Rule 4.34 did not preclude the Applicant from seeking dismissal pursuant to Rule 4.33.

Turning to the calculation of delay, the Court rejected the Estate’s submission that the relevant period was determined by looking back three years from the date the dismissal Application was filed. Relying on Rahmani v 959630 Alberta Ltd, 2021 ABCA 110, Akgungor J. held that time is counted forward from the last uncontroversial significant advance until the filing of the Rule 4.33 Application. Following an exchange of settlement proposals in January 2020, no potential significant advance occurred before settlement discussions resumed in the summer of 2024.

The Estate relied on those settlement discussions in the summer of 2024 and the Applicant’s acquisition of the former matrimonial home (the “Acreage”) to invoke the exception in Rule 4.33(2)(b). That exception did not require a significant advance, but the Applicant’s participation had to be such that the Estate could fairly assume the accumulated delay had been waived.

The Court held that the settlement discussions did not narrow the issues, produce relevant information, or otherwise amount to meaningful progress toward resolution. They therefore could not reasonably have led the Respondent to assume that the Applicant had waived the delay.

The Court reached the same conclusion regarding the Acreage. The Respondent’s interest passed to the Applicant by right of survivorship upon his death. As that transfer occurred by operation of law, it did not constitute active participation by the Applicant in the Action. Filing an Affidavit of Surviving Joint Tenant was also not a “proceeding” for the purposes of Rule 4.33(2)(b). Similarly, changing the locks and removing personal items from the Acreage were, at most, preliminary or preparatory conduct and did not amount to participation warranting continuation of the Action.

Finally, the Estate argued that dismissal would be unfair because Section 16 of the Matrimonial Property Act, RSA 2000, c M-8 permitted an estate to continue, but not commence, a matrimonial property Action. Justice Akgungor held that prejudice or unfairness resulting from dismissal was irrelevant under Rule 4.33.

Having found a continuous three-year period without a significant advance and no applicable exception, the Court dismissed the Counterclaim and, at the Applicant’s request, the Statement of Claim.