Brown v Brown, 2012 ABQB 597

Court of Queen ’ s Bench of Alberta Citation: Brown v Brown, 2012 ABQB 597 Date: 20120928 Docket: 4803 130856 Registry: Edmonton Between: Dianne Joan Brown Plaintiff - and - Stephen Lloyd Brown Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ [ 1 ] Following my direction in my decision in Brown v. Brown , 2012 ABQB 214 , Ms. Brown (whom I will refer to herein as Ms. Hannen as she is now using that surname) provided the information directed to be given to Mr.

Brown in paragraph 3, by way of an affidavit filed June 13, 2012. Mr. Brown filed an affidavit in response to the information dated August 15, 2012. I will treat his affidavit as an application on his part pursuant to paragraph 4 of that decision. It is clear that he wishes a review of spousal support to proceed. [ 2 ] In addition to his previously-advanced concerns about Ms. Hannen's progress in completing her education and beginning to work, he raises issues as to whether Ms. Hannen is in a new adult interdependent relationship.

[ 3 ] Ms. Hannen filed an affidavit on August 24, 2012 responding to Mr. Brown's materials. Included in her materials is a report from her medical doctor which in very strongly worded terms repeats various allegations made by Ms. Hannen against Mr. Brown and advises on her current medical condition. [ 4 ] He concludes by saying "we would request that if the court feels that the surgery and education must take a back seat to a court matter, that consideration of extended and generous time for response be given to Dianne Brown in order for her to manage the pressures upon her at this time". [ 5 ] Ms.

Hannen has previously provided similar letters from Dr. Rene Day, of the University of Alberta's faculty of nursing. [ 6 ] As both parties have now filed materials in accordance with my earlier decision, they both ask "what next?". [ 7 ] While not sought in a notice of application, it is clear that Ms. Hannen seeks to prevent the spousal support review from proceeding on several bases: 1. Mr. Brown has not met the test for establishing an arguable case justifying that leave to proceed with the application be given; 2. Lutz J. already reviewed the spousal support issue in December, 2010; and 3.

Her current circumstances (health and education) make Mr. Brown's review application abusive. [ 8 ] She refers to the materials provided by Dr. Hatfield and Dr. Day in regard to her allegations that the review application is abusive. Leave to Apply [ 9 ] My decision of March 30, 2012 did not resolve Ms. Hannen's application to set aside Ross J.'s order of February 7, 2012 which had given Mr. Brown leave to proceed with a spousal support review application. [ 10 ] Having reviewed the materials filed subsequent to my decision, I am not persuaded by Ms. Hannen that the order should be set aside. Ms.

Hannen seeks to have spousal support continue indefinitely in accordance with the terms of the October, 2006 order. The filed information suggests that she is unlikely to enter the work force, if she ultimately graduates from her nursing program, until late 2015 at the earliest. That is more than four years after the date that was contemplated in the October, 2006 order. [ 11 ] Ms. Hannen is not close to graduation and possible employment; she is three years at best away from that date. [ 12 ] These circumstances alone make Mr. Brown's application reasonably arguable.

The addition of his information concerning whether Ms. Hannen is now in an adult interdependent relationship adds another reasonable argument to his position. He may of course not be successful, having regard to Ms. Hannen's state of health, and factual determinations as to why Ms. Hannen has not completed her education by now and whether or not she is in an adult interdependent relationship. Circumstances may have changed materially, but entitlement, need and quantification of spousal support may not have changed. These are all issues which must be decided by a proper application.

[ 13 ] So as to ground 1, that no leave to proceed should be given, I am satisfied that Ross J.'s order should stand. Lutz J.'s December 21, 2010 Order [ 14 ] Ms.

Hannen argues that Lutz J. reviewed spousal support on December 21, 2010 so there is no basis for a further review. [ 15 ] To understand Lutz J.'s order, it is necessary to review the procedural history of this matter. [ 16 ] The court file shows the history of the court applications and contains the numerous affidavits the parties have filed in the acrimonious history since they separated in late 2003, and entered into minutes of settlement in September, 2005.

A comprehensive corollary relief order was granted on October 10, 2006. [ 17 ] Trussler J., who granted the October 10, 2006 order, remained case management judge on the file until her retirement in 2007. Thereafter, Ross J. took over for some period but case management ended before 2010. There are no records as to what transpired during case management sessions, although it appears that the contentious issues remaining after October 10, 2006 related to the children of the marriage. [ 18 ] The court orders since then reflect that Ms.

Hannen made an application dated November 10, 2006 which was heard on November 14, 2006 varying the October 10, 2006 order and dismissing the relief claimed by Ms. Hannen in the notice of motion. [ 19 ] A case management meeting on May 8, 2007 resulted in Ms. Hannen being granted access to one of the children. [ 20 ] A further case management meeting on August 15, 2007 related to access for Ms. Hannen to one of the children. [ 21 ] No formal applications were made from August, 2007 until June, 2010 when Ms. Hannen brought an application relating to concerns she had over Mr.

Brown's pending move to Victoria, British Columbia, and continuation of the support ordered in October, 2006. Hawco J.'s order of July 5, 2010 dismissed her application, required Mr. Brown to provide notice of any move and contact information to Ms. Hannen, and confirmed his obligations to continue to pay Ms. Hannen in accordance with the October, 2006 order. [ 22 ] On July 8, 2010, following Hawco J.'s order, Ms. Hannen brought a further application returnable July 12 to expand Hawco J.'s order and to "clarify" it. No order appears to have resulted from that application. [ 23 ] Ms.

Hannen brought a further application on August 18, 2010, seeking disclosure, requiring Mr. Brown to register in BC's Maintenance Enforcement Program, for a restraining order arising out of his "deliberate injury" to her, and an order prohibiting any applications by Mr. Brown during the school year. Mr. Brown cross-applied against Ms. Hannen's application, and advanced a claim for the review of his spousal support application for the first time in court proceedings.

His cross-application was filed on September 9, 2010 to review the Settlement Agreement of September, 2005 “ as the Respondent has not complied with the terms of the Agreement ” . [ 24 ] The application and cross-application were heard by Greckol J. on September 13, 2010. In her order, Mr. Brown was required to register with the BC Maintenance Enforcement Program if he began to work in BC. It also adjourned Mr. Brown's cross-application to review spousal support to January 7, 2011. [ 25 ] Ms.

Hannen filed a further notice of motion dated November 15, 2010 returnable at a special chambers hearing for December 16, seeking a restraining order, financial disclosure, reimbursement of $3,200 spent by Ms. Hannen in locating Mr. Brown after he moved to Victoria, and to postpone the review date of January 7, 2011.

[ 26 ] Ms. Hannen appeared in chambers on November 18, 2010 and Marceau J. granted her application to adjourn the January 7 special application date. The hearing was adjourned to January 21. Mr. Brown did not appear on that application. [ 27 ] Mr. Brown cross-applied with respect to Ms. Hannen's November 15 notice of motion, filing a notice of cross-motion on December 7. His cross-application related to restraining order and cost issues, as well as an order prohibiting Ms.

Hannen from bringing any further motions before the January 28 review date. [ 28 ] The special chambers application proceeded before Lutz J. on December 16, 2010. The motions before him related to the relief sought in Ms. Hannen's motion of November 15 and Mr. Brown's cross-motion of December 7. The only issue in those motions relating to spousal support review was Ms. Hannen's application to adjourn it. [ 29 ] The formal order from December 16, 2010 recites: 1. The Application of the Applicant, Dianne Joan Brown is dismissed. 2. The Cross Application of the Respondent, Stephen LLoyd Brown is dismissed. 3.

The review date set for January 21, 2011 are hereby adjourned sine die. 4. The current Restraining Orders in place for both parties shall remain. 5. Neither party is entitled to bring any further applications before the Court without leave. [ 30 ] The clerk's notes are on the court file.

Early in the application, Lutz J. commented "Let's confine this to the Notice of Motion", referring to the application and cross-application, not the spousal support review application set for January, 27, 2011. [ 31 ] In discussing the provision in the order relating to leave to bring further applications, Lutz J. commented "no further court applications except January 27". [ 32 ] At 2:55, he stated that there would be no review date, referring specifically to January 7 and 21.

It is unclear why he concluded that there should be no review date, other than that it was obvious that the myriad of court applications were interfering with Ms. Hannen's education and her relationship with the University of Alberta and Grant MacEwan. [ 33 ] The order taken out following that hearing, however, clearly states that the January 21 application is adjourned sine die. It was not dismissed. No appeal was taken from that order. Instead, Mr.

Brown waited until February, 2012 to renew his application that spousal support be reviewed. [ 34 ] Nothing turns on the date for the spousal support review, whether it be January 7, 21, 27 or 28. [ 35 ] Ms. Hannen alleges that there was a review on December 16, 2010. Certainly, spousal support issues were discussed. Nevertheless, rather than dismiss Mr. Brown's application, Lutz J. adjourned it. That suggests that it was not dealt with on the merits of the matter at that time. Mr. Brown's current materials state that he was not allowed to present his arguments regarding review.

Whether or not that was the case, the order from that hearing leaves the issue of review open, and does not create a new "starting point" from which to determine whether there has been a material change in circumstances. The starting point is October, 2006 and the hearing on November 19 and 20 will be the first review of that order. [ 36 ] Ms. Hannen and Mr. Brown obviously differ on why Lutz J. cancelled the January, 2011 hearing, and whether there was any actual review of the spousal support.

[ 37 ] Regardless of the

interpretation of Lutz J.'s order, it is clear that he did not dismiss Mr. Brown's application. He made no order or direction as to the merits, and made no ruling on whether there had been any change in circumstances after October, 2006. [ 38 ] Mr. Brown brought a fresh application for review in February, 2012. That application was for a review of spousal support, which requires that he demonstrate a material change in circumstances.

My decision of March 30, 2012 picks up the chronology of events from there. [ 39 ] I conclude from reviewing the various motions, affidavits and orders between June 29, 2010 and December 16, 2010, as well as the December 16 order and clerk's notes, that there was no effective review of spousal support. Mr. Brown's application is not barred by the December 16 order, or what happened at the December 16 application. [ 40 ] What is clear is that the present application to review spousal support must be based on a material change in circumstances.

The issue to be determined is whether circumstances have changed since October, 2006 when the order was made and is deemed to comply with the provisions of the Divorce Act regarding corollary relief at that time. Lutz J. adjourned the application sine die and did not deal with changed circumstances in December, 2010. [ 41 ] Mr. Brown's application is to be treated as the first review application since the October, 2010 order. Abuse [ 42 ] I cannot comment on Mr. Brown's actions towards Ms. Hannen while they were together. Her allegations are supported by Dr. Hatfield, but not acknowledged by Mr. Brown.

Similar allegations were raised about abuse by Mr. Brown and the effect of Mr. Brown's abusive court applications on Ms. Hannen's education before Greckol J. in July, 2010 and Lutz, J. in December, 2010. I am mindful that it is in everyone's interests that Ms. Hannen become better educated so that she can eventually seek employment and work towards some self-sufficiency. However, Mr. Brown is entitled to pursue legitimate issues in court applications. [ 43 ] Ms. Hannen's allegations that she was injured by Mr. Brown driving over her foot are allegations which are not admitted by Mr.

Brown and have not been substantiated. This would appear to be a classic case of "he said/she said", although Ms. Hannen states that she has witnesses to the occurrence. Nothing has been proven in court, and police involvement, which was discussed by Lutz J., does not appear to have been engaged. Similar comments may be made regarding abuse by Mr. Brown. Mr. Brown does not acknowledge abusive conduct, although Dr. Hatfield indicates that he has information on this from Mr. Brown. This is again essentially a "he said/she said" situation. [ 44 ] I do not see that any review application will turn on whether Mr.

Brown deliberately ran over Ms. Hannen's foot on August 13, 2010, or whether there was a history of abuse on Mr. Brown's part. Punishment is not a factor in determining spousal support obligations or entitlement. [ 45 ] It may be relevant to determine whether Mr. Brown has abused the court process by bringing multiple applications as Ms. Hannen alleges to undermine her education. That will have to be determined on evidence. [ 46 ] Both Dr. Hatfield and Dr. Day refer to Mr. Brown's "continuing pattern of abusive behaviour", specifically with reference to Mr. Brown's court applications. Dr. Hatfield and Dr.

Day refer to Ms. Hannen's having to respond to these court applications as delaying necessary medical treatment and undermining her ability to complete her educational requirements. [ 47 ] Christie Blatchford, a columnist with the National Post reminded us recently in a column critical of a judicial process that "every pancake, no matter how thin, has two sides". Those are words worth remembering and it is best to avoid giving opinions or making conclusions until both sides have been heard.

[ 48 ] The court has yet to hear both sides of the current dispute. [ 49 ] While there were case management meetings between August 2007 and June 2010, those appear to have related to ongoing access issues. No applications appear on the court file by either party. There was a period of relative calm of nearly three years. [ 50 ] There was then a frenzy of activity from late June to mid December, 2010. [ 51 ] Lutz J.'s decision of December 16, 2010 gave Ms. Hannen a respite from court disputes that lasted until Mr. Brown's application in February, 2012. [ 52 ] My decision of March 30, 2012 gave Ms.

Hannen the opportunity to concentrate on her studies until the end of April, 2012 before having to provide the information required of her. Mr. Brown's reply affidavit was not filed until August 15, 2012, making it impossible to

schedule any type of hearing before the fall. [ 53 ] From a review of the court file, it was Ms. Hannen who began the latest round of court applications, starting in July, 2010. That may well have been a pre-emptive strike on her behalf, but the foot injury she complains of occurred after that date. Mr. Brown's first cross-application was not until September 9, 2010, in response to the third application brought by Ms. Hannen over the period June 29 to August 15. [ 54 ] The chronology during 2010 is necessary for the purpose of understanding Lutz J.'s order and putting it into context.

A review of the chronology also leads me to observe that the court file does not show a pattern of abuse of the court process by Mr. Brown. It shows, for the main, that Ms. Hannen has been the applicant in the great majority of the applications heard since October, 2006. [ 55 ] Dr. Day and Dr. Hatfield appear to be repeating what Ms. Hannen has told them, without any independent knowledge, although Dr. Hatfield refers to Mr. Brown having been a patient so his knowledge of the history of the matter (so long as Mr. Brown remained his patient) may have been informed by discussions he had with Mr.

Brown. [ 56 ] In any event, there is no support on the court file for me to conclude that Mr. Brown ’ s applications to court have been so abusive that he should not be permitted to make his review application. Ms. Hannen is not presently attending university, waiting instead to finalize this court matter.

These parties need certainty and there is currently a brief window of opportunity from now until the end of December, 2012 to resolve this dispute. [ 57 ] As a result, I direct that the issues of ongoing entitlement to spousal support, and in what amount, be heard by way of a special chambers application with viva voce evidence to be held at Edmonton on November 19 and 20, 2012. Mr. Brown will have the onus of establishing that there has been a material change in circumstances since October, 2006. [ 58 ] Mr. Brown will file a memorandum of argument by October 19, 2012. Ms.

Hannen will file a response memorandum by November 9. 2012. Mr. Brown may file a reply to Ms. Hannen's response (if necessary) by November 16, 2012 [ 59 ] Two days is all the court time that is available this fall. The parties must be efficient as to their presentations, and must focus on the issue to be determined: whether there has been a change in circumstances warranting a review of the spousal support ordered in October, 2006 and if so, what changes are appropriate. Mr. Brown has the onus of establishing that there has been a change.

This is not a rehearing about their divorce settlement, or an opportunity to address the wrongs over the past six years since that order, or about either party ’ s character. [ 60 ] Having regard to the history between these parties, it is inappropriate that they question each other. Any questioning will have to be done by counsel on their behalf. The parties may question other witnesses.

[ 61 ] If Ms. Hannen requires any medical evidence concerning her health, it is likely that her doctor should provide affidavit evidence and be available to testify as letters from doctors are generally not appropriate evidence, and Mr. Brown should have the opportunity to test any affidavit evidence by cross-examination. [ 62 ] Mr. Brown will have the morning of the first day to present his affidavit materials, and to be cross-examined by counsel for Ms. Hannen (if required). If he requires any witnesses, he must provide a "will-say" statement of their proposed evidence with his memorandum of argument or reply.

Such witnesses will testify in chief and be cross-examined by Ms. Hannen or counsel during the morning. Ms. Hannen will have the afternoon of the first day to present her affidavit materials, and to be cross-examined by counsel for Mr. Brown (if required). If she intends to call any evidence, will-says will be provided with her response, and such witnesses will be examined and cross-examined in the afternoon. Since Mr. Brown is the applicant, he will have the morning of the second day for any rebuttal evidence and argument. Ms. Hannen will have two hours in the afternoon of the second day for argument, and Mr.

Brown will have 15 minutes at the end of the afternoon for reply. [ 63 ] Undoubtedly the parties could use more time with their dispute if such time were available. This is the only trial time available this fall; it is in my view essential that the parties resolve this matter expeditiously. I am also mindful that Ms. Hannen appears to have put her life on hold pending the outcome of this case. [ 64 ] I do not foresee the need for any applications between now and the hearing date; if either party needs to bring an application, it should be brought on proper notice and with proper supporting materials to me.

Dated at the City of Edmonton, Alberta this 28 th day of September, 2012. Robert A. Graesser J.C.Q.B.A. Appearances: Dianne Joan Brown (Hannen) On her own behalf Stephen Lloyd Brown On his own behalf