Tocher v Tocher, 2013 ABQB 548

Court of Queen ’ s Bench of Alberta Citation: Tocher v Tocher, 2013 ABQB 548 Date: 20130917 Docket: 4801 146374 Registry: Calgary Between: Lori Ann Marie Tocher Plaintiff - and - Daniel John Tocher and Edward Smith Defendants Corrected judgment: A corrigendum was issued on September 20, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _ ________________________________________ ______________ Endorsement of the Honourable Mr. Justice W.P.

Sullivan _________________________________________ ______________ [ 1 ] This matter came before me in Morning Chambers on Tuesday September 10, 2013 as a Family Law Application by the Plaintiff Lori Ann Marie Tocher, requesting leave of the Court to amend her Amended Amended Statement of Claim for Divorce and Division of Matrimonial Property Filed on October 16, 2012 to include a claim for retroactive and ongoing spousal support and costs from the Defendant Daniel John Tocher.

[ 2 ] Briefly stated the parties were married in August of 1999 and separated in January 2008. There are two children of the marriage continuing to be in need of care and support from their parents. The original Statement of Claim filed in November of 2010 included a claim for retroactive and ongoing support (the claim now sought to be added). This claim was withdrawn in contemplation of an overall settlement during settlement discussions that were ongoing in 2012.

In the end those discussions failed and the consideration, as it appears on the face of it, for the withdrawal of the claim for spousal support never materialized. That is to say there being an overall settlement that contemplated a final agreement that settled all outstanding maters between the parties was not reached.

In addition it appears that only after withdrawal of the claim for spousal support the Plaintiff learned that the Defendant was in possession of a significant undisclosed asset. [ 3 ] It’s clear in this case that the amendment would not cause serious prejudice, the relief requested by way of the amendment is not hopeless, it’s not barred by Statute in fact it’s anticipated to be included by Statute and there is no bad faith on the part of the party, that being the Plaintiff, to plead the amendment. (See Quadrangle Holdings Ltd v Coady 2012 ABQB 22 at para 21 to 23 .) [ 4 ] Therefore the relief requested in the family application by the Plaintiff filed in August 30, 2013 is allowed.

Heard on the 10 th day of September, 2013. Dated at the City of Calgary, Alberta thi s 17th day of September, 2013. W.P. Sullivan J.C.Q.B.A. Appearances: Robert Calvert QC and Tara Tiefenach Davis LLP for the Plaintiff Daniel John Tocher the Defendant Self-Represented _______________________________________________________ Corrigendum of the Endorsement

of The Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Robert Calvert added as counsel for the Plaintiff Daniel John Tocher Self Represented