NMA v AS, 2011 ABQB 789

Court of Queen ’ s Bench of Alberta Citation: NMA v AS, 2011 ABQB 789 Date: 20111214 Docket: 4803 147913, 0903 14503, 1003 07263 Registry: Edmonton Between: Action No. 4803 147913 NMA Plaintiff - and - AS Defendant Between: Action No. 0903 14503 Servus Credit Union Limited Plaintiff - and - NMA Defendant Between: Action No. 1003 07263 KS and RS Plaintiffs

- and - AS Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Release of Funds From Monies Paid Into Court [ 1 ] Counsel for the Plaintiff NMA seeks an Order from the Court allowing for the distribution of funds currently paid into Court of approximately $158,000 on the following basis: –

a) The Release of $10,000 to Andrea Doyle of the Family Law Office, counsel for the child, to secure a retainer arrangement for family restructuring therapy for the parties to assist the child;

b) The sum of $2,500 to be released immediately to counsel for the Plaintiff from monies held in trust as Costs ordered against the Defendant for his contempt of the October 21, 2011 Order;

c) The remainder of the monies presently remaining in Court to be distributed to the legitimate institutional creditor claims by CIBC and the Bank of Montreal, and the sharing of the balance of the proceeds between the parties less any Court costs arising out of previous Order that the Defendant is responsible for. [ 2 ] It is submitted that Builder ’ s Liens registered against Edmonton property registered by the Defendant ’ s extended family members are without merit, should be vacated, and should not be paid. [ 3 ] Mr.

KS, brother of the Defendant AS vehemently opposes the payment of any monies out of Court submitting that as a result of an application he brought on November 17, 2011 in Queen ’ s Bench Action No. 0903 14503 to payout funds to the creditors, creditors

were to be examined by each other before any funds would be paid out. [ 4 ] KS ’ s Affidavit of December 9, 2011 in opposition to the Plaintiff ’ s application reads as follows: – 1. On 17 November 2010, I brought an Application to pay funds out of Court in this Action. It was ordered that the creditors be examined by each other before any funds would be paid out. The order for the 17 November 2011 Court date was never drawn and these examinations never occurred. Attached and marked as exhibit “ A ” to this Affidavit is a copy of the Clerk ’ s Notes from the November 17, 2011 Court date. 2.

On 7 February 2011, Mr. AS and Ms. NMA signed a Consent Property and Corollary Relief Order. Paragraph 6 of the Consent Property and Corollary Relief Order states that “ The Plaintiff [Ms. NMA] will discharge her Certificate of Lis Pendens registered as instrument 092 111 336 against the Edmonton real property in the name of the Defendant. ” Ms. NMA failed to discharge her Certificate of Lis Pendens. Attached and marked as exhibit “ B ” to this Affidavit is a copy of the Consent Property and Corollary Relief Order pronounced by Justice Browne on 7 February 2011. 3.

As a result of the Consent Property and Corollary Relief Order, in April of 2011, Mr. Kuefler, Counsel for CIBC, drafted a Consent Order which represented the agreement between most of the creditors. This agreement was signed by Mr. Kuefler, Counsel for CIBC, RS, TS, AS, Lisa Mocnik, on behalf of Bank of Montreal, as well as the writer, KS. Attached and marked as exhibit “ C ” to this Affidavit is a copy of the Consent Order drafted by Mr. Kuefler. 4. Ms. NMA refused to sign the Consent Order drafted by Mr. Kuefler even though it is quite evident that Ms.

NMA does not have any right to the monies held in Court to the credit of this Action. I have also obtained a transcript of a Settlement Meeting between Mr. AS and Ms. NMA which took place on 27 October 2010. Lines 17 through 22 of page 2 states that “ The agreement is as follows with respect to property: NMA, the plaintiff, is to receive all funds presently housed in trust with Lana Robinton Professional Corporation in full and final settlement of all property related matters. ” 5.

Lines 26 and 27 of page 3 and lines 1 through 4 on page 4 state that in return, “ The plaintiff, NMA, will discharge her lis pendens against the -- registered against plan 0524533, block 1, lot 199, being a property standing in the name of AS registered as instrument number 092111336. ” Attached and marked as exhibit “ D ” to this Affidavit is a copy of the transcript of the Settlement Meeting between Mr. AS and Ms. NMA on 27 October 2010. 6. It is my position that assistance from Court is necessary in this Action as Ms.

NMA will most certainly refuse to sign any Consent Orders that address the disbursement of funds held in Court even though it is evident from the Consent Property and Corollary Relief Order pronounced on 7 February 2011 by Justice Browne as well as the transcript of the Settlement Meeting on October 27, 2010 that Ms. NMA does not have a claim to the money held in Court as she has pledged to discharge her Certificate of Lis Pendens. Her refusal to sign the Consent Order is, in my view, a refusal to comply with the Consent Property and Corollary Relief Order pronounced by Justice Browne on 7 February 2011. 7.

I am therefore asking the Court to enforce the Consent Order drafted by Mr. Kuefler and attached and marked as exhibit “ C ” to this Affidavit. 8. Alternatively, if the Court is unable or unwilling to enforce the Consent Order drafted by Mr. Kuefler, I am asking the Court for Advice and Direction in this matter.

If the Consent Order is not enforced, I would like to ask the Court to order once again the examinations which were ordered on 17 November 2010. [ 5 ] KS submits that the Plaintiff NMA also is guilty of refusing to comply with paragraph 6 of a Consent Property and Corollary Relief Order that requires her to discharge her Certificate of Lis Pendens registered against the Edmonton property in the name of the Defendant AS. However this Consent Order from February 7, 2011 also reads as follows: –

6. The Plaintiff Will discharge her Certificate of Lis Pendens registered as Instrument 092 111338 against the Edmonton real property in the name of the Defendant. 7 Any Surplus housed in Court to the credit of the Edmonton Property located at [...] 87 Street and legally described a ’ s Plan 024533 Block 1 Lot 1, after the present creditor claims have been resolved, shall be distributed equally between the Plaintiff and the Defendant . [Underlining Added] [ 6 ] Mr.

KS submits that the Court cannot pay out any funds remaining in trust without jeopardizing all of the creditors interests, and that all creditors must be first notified of Ms. NMA ’ s present application to payout any funds held in trust. Conclusion [ 7 ] I conclude that given that it is common ground that the institutional creditors, CIBC and Bank of Montreal should be paid, it is not necessary for them to be notified of the Plaintiff ’ s present application. [ 8 ] Furthermore the November 17, 2010 application brought by Mr.

KS to pay funds out of Court in 1003 07263 and 0903 14503 was clearly only adjourned subject to the creditors examining each other under oath, which examinations have never occurred.

In fact the Adjournment Order itself has never been prepared, although it appears to have been circulated. [ 9 ] As such I conclude that it is not inappropriate to order the Release of $10,000 towards the Family Restructuring Therapy which is clearly in the best interests of the child in Action No. 4803 147913, or the $2,500 in costs awarded to counsel for the Plaintiff NMA, given the contemptuous conduct of the Defendant AS. [ 10 ] I will however not grant the remainder of the Mother ’ s application to pay out all remaining funds at this time.

Those remaining funds other than the $12,500 that I have authorized herein will remain in Court pending the resolution of those financial matters which were directed by the Court to be the subject matter of the second part of the Trial in Action No. 4803 147913 which has not yet been heard.

That Order dated October 21, 2011 reads as follows: – Upon this matter coming on for Trial between 3 October and 21 October, 2011; And Upon the direction of the Court to set the parameters for financial issues to be adjudicated during the second part of this trial; And upon the Court being advised that a Divorce Judgment and Corollary Relief Order and Consent Property and Corollary Relief Judgment was granted 7 February 2011, and that the Appeal of said Judgments was abandoned and has been struck; It is hereby Ordered that: 1.

The parameter of issues to be adjudicated during the second part of this Trial are: • The distribution of funds held by the Court from the sale of real property located at [...] - 87 Street, Edmonton, AB and more specifically, the legitimacy of any and all creditor claims against said funds in Court.

• Child support and

Section 7 expenses payable, since the granting of the Divorce Judgment and Corollary Relief Order of 7 February 2011. 2. The Defendant, AS shall provide to the Court and to Counsel for the Plaintiff, his witnesses ’ Will-Say Statements and his Witnesses ’ Affidavits, on or before the close of business Friday 4 November 2011. 3. Justice D. Lee shall monitor and manage this matter as necessary, in order to advance same to Trial. 4.

The Trial is adjourned sine die. [ 11 ] It should be noted that AS has failed to comply with the Court imposed November 4, 2011 deadline for providing his Will- Say Statements and his Witnesses ’ Affidavits because he now believes that there is no purpose to the Second part of the Trial, notwithstanding having agreed to the format and content of those proceedings earlier. [ 12 ] The brother Mr. KS and the father Mr. RS may want to bear this position of AS in mind when the Second part of the Trial resumes; or when Ms.

Robinton as she has indicated she will, applies in January 2012 to formally payout the balance of the funds presently held in Court to the parties, after the payment of all institutional creditors and all outstanding Court costs ordered given Mr. AS ’ s position. Heard on the 9 th day of December, 2011. Dated at the City of Edmonton, Alberta this 13 th day of December, 2011. Donald Lee J.C.Q.B.A. Appearances: Lana Robinton for the Applicant AS Appeared on His Own Behalf

KS Brother of AS Quinn M. Kuefler Kuefler & Company #012, 611 - 10 Avenue SW Calgary, AB T2R 0B2 Counsel for Canadian Imperial Bank of Commerce and Servus Credit Union Did not attend Lisa Mocnik/Jackie Maxon Financial Recovery Systems 8989 MacLeod Trail SW Calgary, AB T2H 0M2 for the Bank of Montreal Did not attend