MES v PJS, 2013 ABQB 281

Court of Queen ’ s Bench of Alberta Citation: MES v PJS, 2013 ABQB 281 Date: 20130509 Docket: 4801 151193 Registry: Calgary Between: M.E.S. Plaintiff - and - P.J.S. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. M. Jones _______________________________________________________ [ 1 ] The Defendant (Applicant in this matter) seeks an Order directing that corollary relief be severed and that he be allowed to apply for a desk divorce. This request was made before me at a case management meeting held in this action on March 26, 2013.

This meeting was the first case management meeting held in relation to this matter. [ 2 ] Counsel for both parties provided me with background information relating to the parties and the litigation. Counsel had jointly supplied a helpful agenda outlining various discussion items. Matters which remain to be resolved include, inter alia : 1. child and spousal support; 2. uncharacterized advances to Ms. S; 3. charges to Ms. S's shareholder loan account with DD;

4. attendance at mediation; 5. Mr. S's undertakings; 6. requests for information by Plaintiff's experts; 7. preservation order relating to DD; and 8. costs. [3] The parties have two children, one of whom, T, is still a child of the marriage and who will turn eighteen this November. [4] Having received background from counsel for each of the parties, including counsel for DD, counsel for Mr. S proceededwith his Application for severance. In that regard, I reviewed various Affidavits sworn by Mr. S, including those filed on March 20, 2013and March 25, 2013. I also reviewed Affidavits sworn by Ms.

S on March 6, 2013 and March 21, 2013. [5] At my request, Counsel for Ms. S provided a memorandum of law setting forth his views addressing the merits of Mr. S'sApplication. In considering Mr. S's request, I have noted the following decisions: 1. Miles v. Miles, 2004 ABCA 361 (Alberta Court of Appeal); 2. Boyd v. Boyd, 2008 ABCQ 497 (Court of Queen's Bench of Alberta); 3. Cochard v. Cochard, 2002 ABQB 961 (Court of Queen's Bench of Alberta); 4. Zimmerman v. Zimmerman, (AB KB), 129 A.R. 392 (Court of Queen's Bench of Alberta); 5. Savoia v. Savoia, 2009 ABQB 516 (Court of Queen's Bench of Alberta); and 6. Oakes v.

Oakes, 2011 ABQB 418 (Court of Queen’s Bench of Alberta). [6] Collectively, they articulate the principle that the test for severance is what is "fair" in the circumstances. The followingcircumstances should be considered: 1. Is it preferable that all matters proceed at one time and, if so, why? 2. Has the Applicant demonstrated urgent need for severance? 3. Has the Applicant failed to proceed with reasonable dispatch to have issues, such as child support, spousal support and propertydivision addressed? 4. Has the Applicant advanced compelling evidence that severance would be advantageous? 5.

Is the party opposing severance doing so with the deliberate intention of delaying proceedings? 6. What prejudicial effect would severance have on the party opposing it? 7. Have the provisions of section 11(1)(

b) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) been satisfied? That

section provides asfollows: In a divorce proceeding, it is the duty of the court ... (

b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to theapplicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements aremade.

[ 7 ] With the above considerations in mind, Mr. S asserts: A. In his Affidavit of March 20, 2013 1. He has cooperated in moving this matter forward; 2. He has abided by a Mediation Agreement entered into by the parties on May 29, 2012; 3. He believes that it would be in the best interests of the parties' children if "closure" were brought to the parties' divorce; 4. He endorses changes to the litigation plan in order to allow Ms. S’s experts to prepare reports; 5.

He has been paying amounts in respect of T at a level in excess of that which he would be required to pay under the Child Support Guidelines, based on what he asserts his guideline income to be; 6. In respect of spousal support, he has ensured that Ms. S continues to draw $6,300 per month from DD; 7. Ms. S has received substantial sums of money by way of property division since the parties separated on March 15, 2011; and 8.

He agreed to pay half of the costs of T's enrolment at a clinic to which she was admitted for specialized treatment, notwithstanding that he was not consulted in respect of her participation in this program. B. In his Affidavit of March 25, 2013 1. He is highly motivated to complete the divorce and there are arm's length shareholders in DD who want this matter resolved as well; 2. The parties' children want the matter of the divorce resolved; and 3.

He recognizes that case management affords an opportunity for the Court to implement corrective measures if the parties are not fulfilling their responsibilities to proceed in a reasonable manner. [ 8 ] A memorandum of law provided by counsel for Ms. S makes several points: 1. It is arguable that reasonable child support arrangements have not been made by Mr. S in light of Ms. S's assertions that his ability to pay suggests that higher payments are warranted; 2. Mr. S has unfulfilled requests in respect of disclosure and undertakings which he may have insufficient incentive to fulfill if severance is granted; 3.

Failure to sever causes no prejudice to Mr. S and may delay the litigation process; and 4. Severance should be denied if it is likely that collateral relief issues would not be dealt with reasonably if they were severed from the divorce judgment. [ 9 ] In her Affidavits of March 6, 2013 and March 21, 2013, Ms. S contradicts Mr. S’s Affidavit evidence. She opposes his Application for severance, alleging that he has not acted responsibly in resolving corollary relief issues. [ 10 ] She disputes many of the assertions made at

section 10 of Mr. S’s Affidavit of March 4, 2013 (these assertions were repeated at

section 5 of his Affidavit of March 20, 2013). [ 11 ] She also asserts that Mr. S has not acted responsibly in addressing the needs of the parties’ daughter, T. She asserts at

paragraph 6 (

e) of her Affidavit of March 21, 2013 that the $1,200 per month paid by Mr. S as an “undisclosed amount” would, if it were paid as

section 3 child support, be commensurate with guideline income of only $53,000. It is not clear to me how she arrives at that figure. My calculations suggest that guideline income of $53,000 would require payment of a different amount. [ 12 ] I am adjourning Mr. S's Application to sever corollary relief, and to proceed with a desk divorce, to our case management meeting on June 25, 2013. [ 13 ] I am not yet satisfied that it is fair to grant Mr. S’s request. I acknowledge that his efforts appear to be key to the success of DD.

I accept the notion that severance will allow him to focus additional attention on the activities of DD. DD appears to be the source of most of the parties' wealth and its viability is likely to have implications for ongoing child and spousal support, as well as division of property between the parties. However, I need to assess progress which has been made towards resolving corollary relief issues before I can be comfortable arriving at the conclusion that Mr. S is acting responsibly. Conflicting Affidavits do not allow me to arrive at an appropriate decision.

Viva voce evidence would be helpful, however, I have not had the benefit of such evidence. [ 14 ] Important issues of public policy (such as assuring an appropriate level of child support and arriving at an equitable division of matrimonial property), underlie the question of whether or not to grant a request for severance. There is insufficient uncontroverted evidence before me to make a responsible decision in that regard. [ 15 ] At our case management meeting on June 25, 2013, I anticipate that counsel will provide me with an update on progress which has been made in resolving various issues.

I will decide upon Mr. S’s Application for severance at that time. Based on what transpires at that meeting, I may decide that I need viva voce evidence to make a decision. Heard on the 26th day of March, 2013. Dated at the City of Calgary, Alberta this 9th day of May, 2013. C. M. Jones J.C.Q.B.A. Appearances: Victor H. Vogel for the Plaintiff William T. Aaron, Q.C. for the Defendant