UNTERSCHULTZ v CLARK, 2021 ABQB 492
7.1: Application to resolve particular questions or issues
Following an Arbitral Award regarding spousal support, the Applicant applied for a review of the monthly support awarded and a variation of the lump-sum and arrears awards. In the context of Case Management of that Application, the Respondent sought a direction as to whether there should be a preliminary hearing regarding the “material change” of the Applicant’s circumstances prior to the variation aspect of the Application being considered.
Justice Lema considered the Alberta Court of Appeal authority of Smigelski v Smigelski, 2015 ABCA 320, wherein the Chambers Judge had directed a preliminary Trial of an issue pursuant to Rule 7.1 and the Alberta Court of Appeal overturned this Order finding that there would be overlap between the issue at the preliminary Trial and those issues that would have to be explored at the main Trial. The Court of Appeal held that a Trial should not be split pursuant to Rule 7.1 unless the financial savings are clear, and in that case there was little probability of any meaningful savings.
Justice Lema applied this principle, amongst others, to the matter and held that the piecemeal approach being proposed was an exception to the traditional approach, there was no judicial support for such a bifurcation, and the proposed approach raised the risk of multiple Appeals and would not increase efficiency.
Justice Lema therefore denied the Respondent’s request for the Applicant to make out a preliminary “material change” case and held that the variation Application would unfold in the typical manner.View CanLII Details