Baker v Baker, 2012 ABQB 296

Court of Queen ’ s Bench of Alberta Citation: Baker v Baker, 2012 ABQB 296 Date: 20120508 Docket: 4803 146834 Registry: Edmonton Between: Kenneth Edgar Baker Applicant - and - Judith Mary Teresa Baker Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This application was originally dealt with by me in Family Law Chambers on April 5, 2012 as a result of an application by Mr.

Baker seeking to have the Court re-calculate the post-secondary expenses based on new evidence he presented in an Affidavit. The new evidence essentially consisted of information that Mr. Baker received that his two children had both been awarded Alexander Rutherford ’ s Scholarships in the amount of $2,500 in 2009 and 2010. [ 2 ] Mr. Baker deposed that he had paid tuition for the children of the marriage for the school year 2011/2012 in the sum of $5,019 for each child, and that he deserved to have the overpayment of tuition as a result of the Scholarships in the sum of $5,019 applied to child support expenses.

He alleged in his Affidavit that his former wife and her solicitor Mr. Darren Moroz were aware of this payment, and that they had suppressed the documents confirming the Rutherford Scholarship amount of $5,000 for the children when

this matter first heard in Family Law Special Chambers on March 23, 2011. [ 3 ] Mr. Baker further deposed that since he is only responsible for payment of one-half of the tuition fees for the children in accordance with the Divorce Judgment issued on September 3, 2009, that since he had also paid approximately $20,000 for the two children for tuition and books for the school year 2010/2011, he was not given full credit for these payments when post-secondary expenses were calculated at the March 23, 2011 hearing. [ 4 ] Mr.

Baker swore his Affidavit in Enderby, British Columbia, and appeared in Court unopposed before me when this matter was heard on April 5, 2012. Although I have limited personal recollection of the matter, it is my normal practice to ascertain whether or not proper service had been effected on the other party, and to review the Affidavit of Service on file. Presumably then the Court received representations to this effect, and there was appropriate documentation on the file. An Order was granted reflecting that Ms.

Baker had failed to appear, although properly served, and the Applicant received a $5,000 credit towards his Maintenance Enforcement Program representing the apparent overpayment of

Section 7 expenses for the children as a result of their receipt of $5,000 in Scholarships. [ 5 ] Approximately three weeks later counsel for the former wife, Ms. Baker then advised the Court on April 26, 2012 that his client had received a copy of my April 5, 2012 Order from Maintenance Enforcement. Counsel for Ms. Baker alleges that on March 13, 2012 Mr.

Baker had dropped off unfiled documentation at their offices, and as the documents were not filed , counsel took no steps on behalf of their client. [ 6 ] Counsel further advises that on March 14, 22, and 26, 2012 his assistant had telephone conversations with the Clerk ’ s Office, during which they were advised that there was no record of any Application or Affidavit having been filed on those dates in this matter.

On April 13, 2012 counsel advises the Court that his assistant again spoke with the Clerk ’ s Office, who advised them that no Affidavit of Service was filed as of that date either in this matter. [ 7 ] Counsel takes the position that their office was not properly served with Mr.

Baker ’ s Application, contrary to Rule 6.3(3) of the Alberta Rules of Court which states: – 6.3(3) Unless an enactment, the Court or these rules otherwise provide, the applicant must file and serve on all parties and every other person affected by the application, 5 days or more before the application is scheduled to be heard or considered, (

a) notice of the application, and (

b) any affidavit or other evidence in support of the application. [ 8 ] Counsel submits that since Mr. Baker was acting on his own behalf and had presented unfiled documents which could be changed, altered or revised numerous times before actually being filed and becoming part of the Court Record, counsel was justified in not responding on behalf of Ms. Baker. [ 9 ] Mr. Baker has been given an opportunity to respond to counsel ’ s submissions to the Court. In his letter dated May 4, 2012, Mr. Baker indicates that he did serve counsel by delivering a sworn Notice and Affidavit to the office of Ms.

Baker ’ s solicitor on March 13, 2012, more then three weeks prior to the return date. He states that the documents he served on counsel were copies of document he had received back from the Clerk of the Court one hour previously, and that the Clerk had informed him that he was to give a copy of the documents to the other party in the action. Since his former wife chose not to respond to the Affidavit, or file a Notice disputing the matter, he assumed that since the situation was so straightforward and the facts not in dispute, that there was no opposition to his request. Mr.

Baker also noted that on the morning of April 5, 2012 I had given Ms. Baker additional time to appear in the matter because of the inclement weather. Conclusion

[ 10 ] I conclude that Mr. Baker ’ s response of May 4, 2012 is inadequate in addressing the allegations being made by counsel for his former wife. Mr. Baker does not address fully whether or not filed or unfiled copies of documents were served on counsel ’ s office on March 13, 2012. If unfiled documents were served on counsel, they do not comply with Rule 6.3(3) of the Alberta Rules of Court , and are therefore a nullity.

Counsel ’ s representations to the Court are that documents were unfiled, and that there subsequent checks with the Clerk ’ s Office confirmed this. [ 11 ] In any event Rule 9.15(1) of the Alberta Rules of Court states: – 9.15(1) On application, the Court may set aside, vary or discharge a judgment or an order, whether final or interlocutory, that was made (

a) without notice to one or more parties, or (

b) following a trial or hearing at which a party did not appear because of an accident or mistake or because of insufficient notice of the trial or hearing. [ 12 ] As it is clearly counsel ’ s intention on behalf of Ms. Baker to defend this matter and to challenge Mr. Baker ’ s application, I conclude that the non-appearance by counsel on Ms. Baker ’ s behalf on April 5, 2012 as a result of the explanation being offered by counsel presently, was an “ accident or mistake ” as contemplated in Rule 9.15(1)(b). As such I conclude that Ms. Baker should have the opportunity to respond to and challenge Mr.

Baker ’ s application notwithstanding the “ accident or mistake ” that has occurred here. [ 13 ] This matter will be remitted to Family Law Chambers in the normal course, upon proper notice and upon filed documentation being served on counsel for Ms. Baker by Mr. Baker. In the mean time, Mr. Baker ’ s Order of April 5, 2012 will be vacated. Mr. Baker may include the issue of any costs that he has incurred as a result of the “ accident or mistake ” that I have found exists in this matter when this matter is returned again to morning Family Law Chambers. Mr.

Baker should include any requests for costs as a result of what occurred on March 13, April 5, 2012 and subsequently in his re-application, and his requests for costs arising out of the “ accident or mistake ” can be dealt with at the time the matter is heard again. Heard on the 20 th day of April, 2012. Dated at the City of Edmonton, Alberta this 8 th day of May, 2012. Donald Lee J.C.Q.B.A. Appearances:

Kenneth Edgar Baker Appeared On His Own Behalf Darren W. Moroz Moroz Law Office for the Respondent