Oakes v. Oakes, 2011 ABQB 418

Court of Queen ’ s Bench of Alberta Citation: Oakes v. Oakes, 2011 ABQB 418 Date: 20110704 Docket: 4803 149132 Registry: Edmonton Between: Kelly Gordon Oakes Plaintiff (Applicant) - and - Sandra Charmaine Oakes Defendant (Respondent) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Alleging that the defendant, Ms. Oakes, has no incentive to “move this matter along”, Mr. Oakes asks the court to sever corollary relief and division of matrimonial property claims from the claim for a divorce judgment which he filed in 2009. He states that there is “more than adequate security by reason of the equity in four properties” owned jointly by the parties to offset Ms. Oakes’ child and spousal support and matrimonial property claims. Ms. Oakes asserts that one of her matrimonial property claims relates to Mr.

Oakes’ pension; she states that she will be prejudiced if a divorce is granted before the settlement of the matrimonial property claim. [ 2 ] The application is denied. [ 3 ] Mr. Oakes has not provided any evidence in support of his contention that Ms. Oakes will suffer no prejudice if his request were granted. Indeed, Ms. Oakes asserts, and Mr. Oakes does not deny in his reply affidavit, that Mr. Oakes has not even provided

current financial disclosure relating to income and pension. [ 4 ] Moreover, although a plaintiff is entitled, indeed, encouraged, by the Rules of Court to move litigation along at a reasonable pace, the granting of the order requested will not tend to achieve that result. Mr.

Oakes has not shown any public policy need to obtain a divorce judgment, and his wish to accelerate the pace of litigation would be better served by bringing an application under Rule 4.10 for a timetable of things to do to get the matter to trial, or by an application under Rule 8.5 and Form 38, which is presumably the equivalent to the former R. 236(3). Cases and authority cited [ 5 ] By the respondent: Miles v Miles 2004 ABCA 361 1. Background [ 6 ] The parties were married in 1990 and ceased cohabiting in 2008; they are the parents of two children. Mr.

Oakes filed a Statement of Claim for Divorce and Distribution of Matrimonial Property in March 2009. [ 7 ] Ms. Oakes filed a counterclaim in which she claimed ongoing and retroactive spousal support. [ 8 ] Although the parties agree that child support should be paid pursuant to the Federal Child Support Guidelines, there is a dispute between them about the living arrangements of the younger child. [ 9 ] As I understand it, Mr. Oakes is not currently paying spousal support. [ 10 ] One of the matrimonial property issues relates to Ms. Oakes’ claim to Mr. Oakes’ pension plan. [ 11 ] Ms.

Oakes issued a Notice to Disclose relating to financial matters in June, 2009. She asserts in an affidavit filed in relation to this application that she has not received updated financial information from Mr. Oakes since 2009 and that, in particular, she is not aware of his current income nor of his current pension entitlement. [ 12 ] Mr. Oakes asserts, in a reply affidavit filed in support of his position on this application, that Ms. Oakes has not done any Questioning of him.

He also states that his pension plan administrator assures him that his pension entitlement has been “flagged” so that he would not be able to seek a payout or division of his pension without settlement of the matrimonial property claim. In the same affidavit, he swears that “There is more than adequate security by reason of the equity in the four properties to offset any spousal support or child support or pension division shortfall”. However, Mr. Oakes does not provide any calculation, much less evidence, in support of his assertion. Nor does he refute the statement made by Ms.

Oakes about his failure to keep his financial disclosure evergreen. [ 13 ] At the hearing, Ms. Oakes offered some deadlines to complete some steps to getting the matter ready for trial. 2. General principle relating to severance [ 14 ] As our Court of Appeal stated in Miles , the test for severance is “what is fair in the circumstances”. 3. What is fair in the circumstances here?

[ 15 ] Mr. Oakes has not established that it would be fair to grant severance in the circumstances here. [ 16 ] First, his claim that Ms. Oakes will not be prejudiced by severance is not supported by any evidence whatever. Moreover, Mr. Oakes appears to be in breach of his obligation to keep his financial disclosure evergreen until the proceedings have been disposed of. In those circumstances, there is no basis for determining that Ms. Oakes will suffer no prejudice. [ 17 ] In that context, the information provided by Mr. Oakes about the “flagging” of his pension does not answer Ms.

Oakes’ claim that divorce will end entitlement; it merely addresses any concern that she may have, although she did not express any such concern, about enforcement of entitlement. [ 18 ] Second, Mr. Oakes has not proved that there is a public policy reason why he should get a divorce separately from the other claims in the litigation. [ 19 ] Third, the remedy sought by Mr. Oakes for the mischief about which he has expressed concern, which is that Ms. Oakes is dragging her feet over the resolution of the parties’ various disputes, would not be effective.

Given the amount of time which has elapsed since the separation of the parties, I entirely agree that the issues do not appear so complex as to explain the delay in the disposition of the dispute. However, Mr. Oakes has more obviously effective case management tools than severance at his disposal. An application under Rule 4.10 or an application under Rule 8.5 and Form 38 come to mind. Indeed, although Ms.

Oakes did, at the hearing, offer to complete some steps by a specified time line, I decline to include that offer in an order because it would be far more appropriate to have the comprehensive determination of pre-trial procedure, including the requisite dispute resolution meeting, contemplated by Rule 4.10 than to have a piecemeal approach to the pace of litigation. 4. Who is responsible for drafting the order that results from this decision? [ 20 ] Ms. Oakes has been successful in resisting Mr. Oakes’ application for severance; therefore, she will have the responsibility of preparing the resulting order. 5.

Costs [ 21 ] 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 14 th day of June, 2011. Dated at the City of Edmonton, Alberta this 30 th day of June, 2011.

J.B. Veit J.C.Q.B.A. Appearances: Hu Eliot Young for Mr. Oakes, Applicant Eleanor K. Boddy, Q.C. for Ms. Oakes, Respondent