LaFontaine v. LaFontaine, 2011 ABQB 332

Court of Queen ’ s Bench of Alberta Citation: LaFontaine v. LaFontaine, 2011 ABQB 332 Date: 20110516 Docket: 4809 004368 Registry: Peace River Between: Robert Leonard LaFontaine Plaintiff - and - Marcia Gayle LaFontaine Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] In this application Ms.

LaFontaine seeks an order pursuant to Rule 4.16(2) that: The parties’ responsibilities to manage their dispute, including good faith participation in specifically enumerated dispute resolution processes with respect to all of the action, be waived by the Court and the issue of spousal support be permitted to proceed to trial. The Court has a discretion under that Rule to waive the requirement of a pre-trial dispute resolution process in certain circumstances.

[ 2 ] I have concluded that the order sought cannot be granted for reasons that have nothing to do with the discretion I have under the Rule. [ 3 ] Mr. LaFontaine commenced this divorce and matrimonial property action on November 20, 2006. Ms. LaFontaine has never filed a Statement of Defence or other formal pleading. [ 4 ] Nevertheless, issues of child custody, access, child support, and spousal support, and matrimonial property have all been determined in chambers applications brought by one or other of the parties. [ 5 ] The matter was set for a two-day trial on September 29 and 30, 2008.

However, the trial was cancelled when the parties settled. A Consent Matrimonial Property Order was granted on October 9, 2008. On December 12, 2008 a Divorce Judgment which dealt by consent with the corollary relief matters of custody, primary residence, access, child support, and spousal support was granted. All of those corollary matters had been dealt with in previous orders, the terms of which were repeated in the Divorce Judgment. [ 6 ] Thereafter there was an application and order relating to the

interpretation and enforcement of the terms of the Matrimonial Property Order. Then there was a further application and order in relation to child support s. 7 issues. There were also two consent orders relating to s. 3 child support variations. [ 7 ] The Defendant’s entitlement to monthly spousal support under the Divorce Judgment expired on June 30, 2010. [ 8 ] On July 21, 2010 the Defendant applied for an order: Granting a continuation in spousal support to Marcia LaFontaine payable by Robert LaFontaine in the sum of $1,800.00 per month for an indefinite term.

The application was returnable August 19, 2010 in ordinary chambers. On that day, it was adjourned to a special chambers on January 13, 2011. In the meantime the Court ordered that the Plaintiff pay spousal support of $1,000.00 per month without prejudice to the determination of the issue on January 13. [ 9 ] On January 13, 2011 the special chambers application was heard by Wilson J. The formal order, which was prepared by Ms.

LaFontaine’s solicitor, labels the document an “Order” and records that Wilson J. ordered: THAT the Respondent, Robert Leonard LaFontaine, shall pay to the Applicant, Marcia Gayle LaFontaine, the sum of $500.00 per month for spousal support commencing on the 1 st day of February, 2011 and continuing on the 1 st day of each month thereafter up to and including, August 1, 2013. The order was entered on January 26, 2011. [ 10 ] So far as the Queen’s Bench Court file reveals, no appeal was taken from that order.

Counsel said nothing of an appeal at the hearing of this application. [ 11 ] Though the Family Application filed by Ms. LaFontaine in respect of the matter before me seeks only the waiver of the requirement of a dispute resolution process, in her affidavit in support of the application Ms. LaFontaine swears that it is her position that the three court orders that have dealt with spousal support are “interim orders”. The implication is that it is her position that the issue of spousal support is extant and that she has the right to have it set for trial.

[ 12 ] That position is not correct. [ 13 ] The Divorce Judgment, which is without doubt a final order, dealt with spousal support and did not contemplate any continuation of spousal support after June 30, 2010. [ 14 ] No doubt Ms. LaFontaine had a right to apply for a further spousal support award thereafter. The process she chose for doing so was the normal process - an application in the original action. There was nothing in the process she commenced that suggested she sought to have the issue determined in a trial. Her Notice of Motion filed in July 2010 did not propose the trial of an issue.

There is no indication that when the matter came before a judge in ordinary morning chambers in August 2010 and was adjourned to special chambers that anyone suggested the issue required a trial. Neither was there any such suggestion in the chambers brief filed by Ms. LaFontaine’s counsel in relation to the special chambers application. [ 15 ] It appears that it was not until after the application was heard and decided in special chambers that Ms. LaFontaine took the position that the order was “interim”.

Nothing in the January 13, 2011 order indicates that it is an “interim order”. [ 16 ] The term “interim order” is usually used where an order is given before trial and is intended to govern until trial. In this case the part of the proceedings that would lead to a trial ended with the Consent Matrimonial Property Order and the Divorce Judgment of November and December 2008. There is no proceeding extant that would lead to a trial. [ 17 ] The term “interim order” would also be accurately applied to the order granted in August 2010 given that it clearly intended that the obligation it imposed on Mr.

LaFontaine to pay spousal support would apply only until the Court considered the matter fully at a Special Application on January 13, 2011. [ 18 ] In any event, Wilson J.’s order clearly establishes how long it will be in force – until August 1, 2013. Short of some change of circumstances from those which existed on January 13, 2011, no judge of this Court could make any order contrary to the order made by Wilson J. on that day. If a change of circumstances is alleged, the normal process would be for the party alleging it to bring an application as Ms.

LaFontaine did in July 2010. [ 19 ] My review of the court file reveals no issue to be set for trial. In these circumstances, the question of whether the requirement of a dispute resolution process should be waived does not arise. [ 20 ] I dismiss the application. Mr. LaFontaine will have costs of $250.00. Heard on the 31 st day of March 2011. Dated at the City of Edmonton, Alberta this 16 th day of May 2011.

Brian R. Burrows J.C.Q.B.A. Appearances: Ryan D. Rigler for the Defendant The Plaintiff appeared without counsel.