Pecharsky v Pecharsky, 2016 ABQB 382

Court of Queen’s Bench of Alberta Citation: Pecharsky v Pecharsky, 2016 ABQB 382 Date: 20160707 Docket: 4801 151317 Registry: Calgary Between: Mary Elizabeth Longley Pecharsky Applicant/Plaintiff - and - Larry John Pecharsky Respondent/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.A. Kent _______________________________________________________ [ 1 ] The husband and wife separated in 2011 after about 18 years of marriage.

The husband is a medical doctor, the wife left her work at an airline to work as a medical assistant for the husband. [ 2 ] At separation, the couple made a post-nuptial agreement. It was done in a two-step process. First, the couple signed a joint letter setting out the terms of their agreement on the division of property. That letter was incorporated into a formal post-nuptial agreement. One of the issues in dispute is whether the formal agreement correctly reflects what was agreed upon in the letter agreement. The wife seeks rectification of the formal agreement. The second issue, regardless of the correct

interpretation of the agreement between the couple, is the property available for distribution. The wife questions whether there has been full disclosure of the property acquired and disposed of during the marriage.

[ 3 ] The wife says that she is impecunious so seeks an interim order for costs of $100,000. The husband says that the transfer of various items of property from him to the wife in the years since separation has resulted in receipt by the wife of her share of the matrimonial property. To make his point, in March 2016, the husband unilaterally stopped paying the wife $3,000 per month, a term in the post-nuptial agreement.

By the agreement, that monthly payment was to stop only when the wife received her share of the property. [ 4 ] The parties disagree on the test that I must apply to decide whether to grant this order. The wife says that the only thing that she must prove is impecuniosity. She cites McDonald v McDonald , 1998 ABCA 241 , applied in Lakhoo v Lakhoo , 2015 ABQB 357 and Milavsky v Milavsky Estate , 2016 ABQB 333 . The rationale for this simple test is that one party to the marriage would be unable to advance their case simply because they did not have the means.

That would be unfair. [ 5 ] The husband says that the wife must show that she has a prima facie case on the merits, relying on the decision in British Columbia (Minister of Forests) v Okanagan Indian Band , 2003 SCC 71 . He also argues the wife must show that legal aid is not available. Finally, he argues that she has received sufficient funds from matrimonial property to fund her case. [ 6 ] The rationale for requiring only evidence of impecuniosity to grant an order for interim costs in matrimonial cases makes sense in principle.

However, it is reasonable to expect that the applicant explain what the case is about and what is in issue between the parties. [ 7 ] Here, the husband and wife have produced competing spreadsheets to support their positions. Although the husband argues that it is clear that the wife has already received all that she is entitled to, it is not obvious to me. It is also not obvious that the wife would be unsuccessful on her rectification application. What is obvious is that the wife is impecunious so that without an order for interim costs, she will be unable to prosecute her claim.

That would not be fair. [ 8 ] In my view, it is reasonable to order that the husband pay interim costs. $100,000 is high because I understand that the important work left to do before trial is accounting work. Once that is done, the issues remaining should be discrete. If a trial is required, it should not be long. The case management judge already assigned should be able to assist in moving the action along. A more reasonable figure is $75,000.

At the conclusion of the trial those costs must be accounted for in the sense that if the wife is not successful, the trial judge may order her to repay these costs in addition to any other order that judge makes. Heard on the 05 th day of July, 2016. Dated at the City of Calgary, Alberta this 07 th day of July, 2016. C.A. Kent J.C.Q.B.A. Appearances: V.A.(Bud) MacDonald, Q.C. for the Applicant/Plaintiff Patrick F. Mahoney for the Respondent/Defendant