Heinzelman v Heinzelman, 2017 ABQB 424

Court of Queen’s Bench of Alberta Citation: Heinzelman v Heinzelman, 2017 ABQB 424 Date: 20170705 Docket: 4803 178498 Registry: Edmonton Between: Wendy Ingeborg Heinzelman Plaintiff/Applicant - and - Philip Anthony Heinzelman Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Douglas R.

Mah _______________________________________________________ Background [ 1 ] In a family law special application heard by me on June 19, 2017 the applicant wife seeks certain interim relief in the form of spousal support and costs, and a litigation plan to enable a smoother route to trial. The respondent husband disputes the interim relief, agrees with a more defined litigation path but also contends that the parties are in the wrong forum. He argues that the parties should be directed by back by this Court to a combined mediation/arbitration process to which (he says) they had previously agreed.

The wife, through her counsel, denies any such agreement. [ 2 ] Accordingly, my first task is to determine whether there is an enforceable agreement between the parties to engage in the combined mediation/arbitration as an alternative to litigation.

Facts [ 3 ] The parties were married June 27, 2008 and separated October 13, 2015. In between they relocated from Prince George, British Columbia to Fort McMurray, Alberta to take up careers in the dental field, he as a dentist and she as a dental hygienist. The husband continues to carry on a dental practice in Fort McMurray and, along with a business partner, owns and operates a commercial building. Following separation, the wife moved back to Prince George. [ 4 ] A divorce and matrimonial property action was commenced by the wife on December 8, 2015.

An interim without prejudice Order was granted by this Court on January 26, 2016 directing the husband to pay spousal support to the wife in the sum of $3,500.00 per month and setting down a special application to hear the matter in full. After a number of intervening events, including counsel changes and the Fort McMurray fire in 2016, the matter was heard again on December 13, 2016 in morning Chambers.

At that time current counsel entered into a Consent Order transferring the matter from Fort McMurray to Edmonton, adjourning the special application to a future date and directing that the parties engage in mediation no later than March 31, 2017. [ 5 ] The parties and their counsel did attend a mediation session on March 9, 2017 in Calgary before Ms. Krysta Ostwald as mediator. The husband says this session resulted in a binding interim agreement committing both sides to a mediation/arbitration process that would result in either a negotiated settlement or a binding arbitration award on all issues in litigation.

The wife, on the other hand, takes the position that no such or any binding interim agreement exists. She asks the court to decide her application for interim relief on its merits. Evidence [ 6 ] In his affidavit sworn May 23, 2017, the husband deposes as follows (at paras 8 through 14): • The parties attended the mediation before Ms. Ostwald on March 9, 2017 and reached an interim agreement; • In particular, the parties agreed to execute a formal mediation/arbitration agreement with Ms.

Ostwald, book a further session, adjourn the special application which was then scheduled for a date in June, 2017, and retain an expert to complete a business valuation and income determination report; • Following the initial session, the husband and his counsel diligently worked on the “homework items” resulting from the session; • Despite attempted contact in writing and by telephone, the husband’s counsel was unable to communicate directly with the wife’s counsel regarding further participation in the mediation; and • It was not until May 11, 2017 that the husband and his counsel learned (from being copied with correspondence to court staff) that the June 2017 special application was proceeding. [ 7 ] The husband’s same affidavit contains by way of exhibit an email dated March 16, 2017 from Ms.

Ostwald and sent to the husband’s counsel and to info@virklaw.ca which presumably Ms. Ostwald believed to be the email address for the wife’s counsel. The email begins with the sentence “I am writing to confirm the following interim agreement reached between the parties at our mediation session on March 9, 2017 ...” and then continues for two single spaced pages with a lot of detail of the purported agreement.

Notably, the email stipulates that the parties shall sign a mediation/arbitration agreement (a form of which was attached to the email), provides three agreed upon names of certified business evaluators, splits up the couple’s loyalty points, identifies outstanding financial disclosure and assigns specific tasks to the parties in contemplation of the next session.

There are 13 specific points covered in the email, all purportedly documenting aspects of the interim agreement. [ 8 ] It was explained to me during submissions that the “mediation/arbitration agreement” is a convention well known among family law practitioners in Calgary. It contemplates the parties entering into mediation with any resulting settlement reduced to a consent arbitration award.

The form of agreement further contemplates that if the mediation does not result in a consensual outcome, then a formal arbitration will be held before the same individual. [ 9 ] Also exhibited in the husband’s affidavit is a letter from the husband’s counsel to the wife’s counsel dated March 28, 2017 which references Ms. Ostwald’s email of March 16, 2017 and asks for feedback on several of the matters raised in the email. [ 10 ] The wife’s affidavit filed June 1, 2017 does not speak to the existence of an interim agreement at all.

Rather, it confines itself to saying at para 7 that whatever occurred during the mediation was on a without prejudice basis and she has been advised by her counsel not to talk about it. [ 11 ] In the wife’s counsel’s confirming letter at page 6, he makes the following statements: • No agreement was signed between the parties indicating any consensus was reached and there was no agreement to enter into an arbitration/mediation agreement; • The “alleged” email from Ms.

Ostwald was never received by the wife’s counsel; • No agreement as indicated in the email was reached; • All correspondence between counsel on the file has been sent from and received by the wife’s counsel using the email address nav@virklaw.ca ; and • There is no agreement to any further mediation beyond that contemplated in the December 13, 2016 Consent Order.

Issue [12] The main issue for decision is whether there is an enforceable agreement compelling the parties to complete themediation/arbitration process. A subsidiary question is whether the entirety of what occurred at the March 9, 2017 session, including theoutcome as set out in Ms. Ostwald’s email, is privileged. Law [13] It is accepted that the content of discussions at mediation are in the nature of without prejudice negotiations and thereforeprivileged. However, there can be one exception and that is where the existence or

interpretation of a consensual agreement is at issue insubsequent litigation. See AH v JTH, 2005 BCSC 185 , [2005] BCJ No. 321 at para 33 and Stewart v Stewart, 2008 ABQB 348at para 19. [14] Here, what is at issue is the very existence of an interim settlement agreement. What is sought to be admitted is not thecontent of the negotiations or discussions which occurred during the mediation, but rather the consensual outcome of the mediation, asdocumented in Ms. Ostwald’s email of March 16, 2017.

Clearly, since the existence of an interim agreement is in dispute, evidence ofthe purported agreement is admissible in the same manner as if a party was alleging the defence of settlement. [15] The husband proposes that the interim agreement here is the whole of Ms. Ostwald’s email including the attached form ofmediation/arbitration agreement. The email on its face evidences an “arbitration agreement” within the meaning of s 1(1) of theArbitration Act, RSA 2000, c A-43. The husband’s counsel is correct to point out that s 5(1) thereof provides that an arbitrationagreement need not be in writing.

Thus the fact that the parties did not sign the form of mediation/arbitration agreement does not meanthat they did not agree to submit the divorce and matrimonial property action to arbitration. [16] I conclude that an interim agreement was reached as documented by Ms. Ostwald’s email for the following reasons: • The husband positively deposes to the existence of the agreement in his affidavit of May 23, 2017. • The wife does not deny the existence of the interim agreement. Rather, she says that she adopts the advice of counsel that allmediation discussions are cloaked with privilege. • Mr.

Ostwald’s email is both detailed and succinct. It would be astonishing if Ms. Ostwald was mistaken about all of it. • The husband’s counsel’s follow-up letter of March 28, 2017 to the wife’s counsel arises from Ms. Ostwald’s email. The entirecontent of the letter is premised on the process before Ms. Ostwald continuing. One would have thought that if the wife’s counseldisagreed with that notion, he would have reacted to the letter.

Rather, he seems to have engaged in avoidance of the husband’s counsel,who only found out that the special application was going ahead, as opposed to being adjourned, by being copied with correspondence tothe clerk’s office. • While the wife does not deny the existence of the interim agreement in her affidavit, the wife’s counsel does exactly that in hisconfirming letter. The confirming letter is in the nature of submissions and is not evidence. [17] Chambers, whether it is special chambers or ordinary chambers, operates on the basis of affidavit evidence.

The Court expectsthat every factual assertion put forward by counsel can be found in the evidence, either in an affidavit or the transcript of questioning, ifany. Counsel should not state purported facts unless they are grounded in the evidence or in the very least agreed to by other counsel. [18] I am prepared to accept that the wife’s counsel’s statement that no interim agreement was reached is an inference of fact hewishes me to draw. However, on page six of his confirming letter, the wife’s counsel makes at least two assertions of fact not found inthe evidence: • That he never received the email from Ms.

Ostwald, and • That all email correspondence between counsel used the email address nav@virklaw.ca. [19] At no time during the hearing did the wife’s counsel disassociate himself from the email address info@virklaw.ca. [20] If counsel wishes to place in evidence facts that are only within counsel’s knowledge, then counsel should swear an affidavitand have someone else appear. This is particularly so where counsel is relying on those purported facts to contradict events sworn to bythe other side. [21] Finally, the wife’s counsel refers to Exhibit D in the husband’s affidavit as the “alleged” email from Ms.

Ostwald. There isnothing alleged about it. Nothing has been put before the Court to suggest that it is not genuine. [22] Even if Ms.

Ostwald’s email was not sent to the wife’s counsel at his preferred email address, when he received thehusband’s counsel’s March 28, 2017 letter referencing the interim agreement (which letter he did not deny receiving), a reasonablelawyer would have contacted the letter’s author to ask what it was all about. [23] What I do infer from the established facts is that the wife or her lawyer decided after-the-fact that litigation was the betteroption and they comported themselves accordingly, deliberately ignoring the interim agreement that had been reached during the initialmediation session.

Conclusion [ 24 ] Accordingly, I find that there is a binding and enforceable interim agreement as evidenced by Ms. Ostwald’s email of May 16, 2017. [ 25 ] The parties are directed to complete the mediation and arbitration process contemplated in that email, including the execution of the mediation/arbitration agreement. [ 26 ] In view of that finding, I am not required to deal with the other issues in the application. [ 27 ] The husband will have his costs of this application. Heard on the 19 th day of June, 2017. Dated at the City of Edmonton, Alberta this 5 th day of July, 2017. Douglas R. Mah J.C.Q.B.A.

Appearances: Erica Pridham Vogel LLP for the Husband (Defendant/Respondent) Navdeep Virk Virk Law for the Wife (Plaintiff/Applicant)