Metcalf v. Metcalf, 2011 ABQB 186

Court of Queen ’ s Bench of Alberta Citation: Metcalf v. Metcalf, 2011 ABQB 186 Date: 20110318 Docket: 4803 102116, 9703 22014 Registry: Edmonton Between: Ronald David Metcalf Applicant - and - Shawn Teresa Metcalf Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Ms. Metcalf issued a statement of claim for matrimonial property, action no. 9703 22014, in November, 1997. The CASES printout for that file indicates that documents were filed by Ms.

Metcalf during 2000, and that an adjournment sine die in the matter was granted on November 20, 2000. In 2003, Ms. Metcalf brought an application to vary child support and Mr. Metcalf countered with an application for the pay out of the funds in the matrimonial property action. Ms. Metcalf provided answers to written interrogatories in February 2004, and some of those questions related to matrimonial property.

The court file has been stored off-site since December 21, 2007. [ 2 ] Invoking Rule 4.33, and asserting that nothing has been done to significantly advance the matrimonial property action during the last two years, and indeed that nothing at all has been done during the last 2 years, Mr. Metcalf brings an application in the above- noted divorce action for an order dismissing the matrimonial property action.

[ 3 ] Ms. Metcalf does not argue that any steps were in fact taken in the matrimonial property action within the last two years. [ 4 ] I determine that Ms. Metcalf was not prejudiced by the incorrect action number in Mr. Metcalf’s application. [ 5 ] Mr. Metcalf is entitled to the relief which he seeks. [ 6 ] What should happen to the $20,386.71 which is in Ms. Metcalf’s lawyer’s trust account, by agreement between the parties, awaiting the disposition of the matrimonial property claim? [ 7 ] Normally, these proceeds would be divided equally between the parties. [ 8 ] However, Mr.

Metcalf argues that he has been advised by Ontario maintenance authorities that he has overpaid child support by some $9,600.00; therefore, he proposes that $9,600.00 be deducted from Ms. Metcalf’s share of the proceeds and be transferred to him. That application is denied. Mr. Metcalf is asking the court to grant

summary judgment in proceedings which he has not started; clearly, the court cannot, and should not, do so. If Mr. Metcalf wants to pursue the issue of the alleged overpayment of child support, in light of the fact that, since 1997, he has paid child support only for 2 of the 3 children who were in Ms. Metcalf’s care until they were no longer “children of the marriage”, he can initiate proceedings against Ms. Metcalf; the issue of carriage of the proceedings is important for costs assessment.

If, in September 2011, the parties’ youngest child does indeed return to full-time attendance at an educational institution, Ms. Metcalf can then make a claim for child support from Mr. Metcalf. If Ms. Metcalf were to make such a claim, Mr. Metcalf might, unless he has taken prior action in relation to the claimed over-payment, raise the alleged over-payment as a response to Ms. Metcalf’s claim.

In any event, the court cannot make any determination on the alleged over-payment at this time. [ 9 ] In those circumstances, the court orders the $20,386.71 to be divided equally between the parties and to be paid out to each of them forthwith. [ 10 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 16 th , 17 th and 18 th days of March, 2011. Dated at the City of Edmonton, Alberta this 18 th day of March, 2011. “J.B. Veit” J.B. Veit J.C.Q.B.A. Appearances: Hu Eliot Young

for Ronald David Metcalf Carolyn L. Seitz, Duncan & Craig LLP for Shawn Teresa Metcalf