Soriano v Bacalla, 2021 ABQB 195

Court of Queen’s Bench of Alberta Citation: Soriano v Bacalla, 2021 ABQB 195 Date: 20210315 Docket: 4803 169201 Registry: Edmonton Between: Gerry G. Soriano Plaintiff - and - Evangeline Bacalla Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S. Feth _______________________________________________________ [ 1 ] Gerry Soriano, the husband, applies to dismiss a spousal support “counterclaim” advanced by his wife, Evangeline Bacalla, so that he can proceed with a desk application for a divorce. The dismissal is sought due to long delay.

Alternatively, he asks that the corollary relief be severed from the divorce and for leave to proceed with a desk divorce. Background

[ 2 ] The parties were married on October 17, 1993. They disagree on their separation date. [ 3 ] The parties have two adult daughters (aged 21 and 26 respectively) who are currently attending university. Their eldest daughter is expected to complete her university studies in June 2021. According to the husband’s Affidavit sworn January 14, 2021, he continues to support his daughters by paying their university tuition and regularly providing them with a living allowance. [ 4 ] The husband lives in Alberta.

The wife and the parties’ two daughters appear to live in the Philippines. [ 5 ] The husband filed a Statement of Claim for Divorce at the Court of Queen’s Bench in Edmonton on August 26, 2014. In addition to requesting a divorce, in the “remedy sought”

section of the form, he checked off the boxes for custody, access or parenting arrangements, and child support. He asked that these corollary relief issues be “reserved”. The husband served the wife with his Statement of Claim in the Philippines. [ 6 ] The wife filed a Statement of Defence on October 22, 2014.

At the end of the Statement of Defence, the wife requested “as Counterclaim, plaintiff be ordered to support his (2) children and defendant pursuant to the Philippine Law.” [ 7 ] The wife did not serve and file a separate counterclaim in Form FL-5 or a document entitled a Statement of Defence and Counterclaim.

Although the wife has not applied to cure the irregularity with her pleading, I have the authority to make an order, on my own motion, under Rule 1.5(1) and (4) of the Alberta Rules of Court, Alta Reg 124/2010 ( Rules ) to cure the irregularity if doing so will cause no irreparable harm to the husband. [ 8 ] On this application to dismiss, the husband has treated the wife’s Statement of Defence as though it includes a counterclaim for spousal support.

His application does not mention the claim for child support, but if a counterclaim exists, I conclude that child support is expressly part of it. [ 9 ] I find that no irreparable harm will be caused to the husband if I treat the pleading filed by the wife as a combined statement of defence and counterclaim.

However, if the notional counterclaim is not dismissed, curing the irregularity will require the husband to file a statement of defence to counterclaim if he wishes to avoid being noted in default. [ 10 ] For the reasons which follow, I conclude that dismissal of the wife’s claim for spousal and child support based on long delay is not appropriate. The husband’s alternative request for severance and leave to apply for a desk divorce is granted.

Dismissal for Long Delay [ 11 ] The husband’s materials do not specify the rule under which he applies, but his counsel referenced the “3 year drop dead” rule, being Rule 4.33(2) of the Rules . The husband contends that no significant steps have been taken in regard to the notional counterclaim for more than 6 years and further that the wife is not entitled to spousal support. [ 12 ] On application, the Court has the authority to dismiss an action for long delay.

Rule 4.33(2) provides: Dismissal for long delay 4.33(2) If 3 or more years have passed without a significant advance in an action, the Court, on application, must dismiss the action as against the applicant, unless (

a) the action has been stayed or adjourned by order, an order has been made under subrule (9) or the delay is provided for in a litigation plan under this Part, or (

b) an application has been filed or proceedings have been taken since the delay and the applicant has participated in them for a purpose and to the extent that, in the opinion of the Court, warrants the action continuing.

(3) If the Court refuses an application to dismiss an action for delay, the Court may make whatever procedural order it considers appropriate.

(4) The period of time referred to in subrule (2) does not include the following, whichever ends earlier: (

a) the period of time between the service of a statement of claim on an applicant and the service of the applicant’s statement of defence; (

b) the period of one year after the date of service of a statement of claim on an applicant. [ 13 ] The Alberta Court of Appeal in Brost v Kusler , 2016 ABCA 363 at paras 9 and 11 [ Brost ] confirmed the 3 year drop dead rule set out in Rule 4.33(3) applies to divorce and matrimonial property proceedings. [ 14 ] A counterclaim is considered to be an independent action: Rule 3.58. [ 15 ] Under Rule 3.60(1): 3.60

(1) Except when the context or these rules otherwise provide, a rule that applies to or in respect of (

a) a plaintiff applies equally to or in respect of a plaintiff-by-counterclaim and a third party plaintiff-by-counterclaim, (

b) a defendant applies equally to or in respect of a defendant-by-counterclaim and a third party defendant-by-counterclaim, and (

c) a pleading related to a claim made by statement of claim applies equally to or in respect of a pleading related to a counterclaim.

[ 16 ] The 3 year drop dead rule applies to counterclaims by virtue of Rules 3.58 and 3.60(1)(

a) of the Rules . [ 17 ] While the Statement of Defence provides notice of a possible claim for spousal and child support, a statement of defence cannot be “dismissed” for long delay under Rule 4.33(2) . Rather, it can be struck out under Rule 3.68(1) (

a) of the Rules : Meilleur v Meilleur , 2006 ABCA 38 at para 17 [ Meilleur ]. The word “struck” is used in paragraph 11 of the husband’s Affidavit. However, the reason for the striking is the “undue delay” and not any of the conditions identified in Rule 3.68(2).

I would therefore dismiss the husband’s application to dismiss the wife’s spousal support “counterclaim” on this basis alone, absent a direction to cure the irregularity. [ 18 ] I will consider whether dismissal for delay is appropriate in the circumstances of this case were I to cure the irregularity with the wife’s pleading and find she has made a valid counterclaim for support. [ 19 ] In order to be successful on his application, the husband must establish there has been no significant advance in the notional counterclaim during at least the three years preceding the delay application. [ 20 ] The Court must employ a functional review of the steps taken to determine whether they significantly advanced the action: Brost at para 13 ; Canada (Attorney General) v Delorme , 2016 ABCA 168 ; XS Technologies Inc v Veritas DGC Land Ltd , 2016 ABCA 165 ; Weaver v Cherniawsky , 2016 ABCA 152 at para 18 [ Weaver ]; Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 [ Ursa ]; Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 . [ 21 ] The Alberta Court of Appeal in Ursa held that a functional analysis is necessary even if the step relied on was mandatory under the Rules .

The issue is whether the substance of the step (not its form) significantly advanced the action: Ursa at para 3 ; Brost at para 15 . In Weaver , at para 18 , the Court of Appeal explained: Under the delay Rules the functional approach requires the chambers judge to determine whether the step said to be a “significant advance in an action” actually moves the lawsuit forward in a meaningful way considering its nature, value, importance and quality. The genuineness and the timing of the step are also relevant.

The focus is on the substance of the step taken and its effect on the litigation, rather than on its form: [citations omitted]. [ 22 ] At paragraph 8 of his Affidavit, the husband deposes that the wife did not take any further steps after filing her Statement of Defence to advance her spousal support claim.

The procedure card attached to his Affidavit as Exhibit A shows the last step taken on this matter was the filing of the Affidavit of Service confirming service of the Statement of Defence, which was filed by the wife on November 5, 2014. [ 23 ] I am satisfied that the wife has not taken any steps to significantly advance a claim for spousal support since filing her Statement of Defence on October 22, 2014. Indeed, with the exception of this application, neither party has done anything to materially advance their respective claims for over six years.

That said, I would not dismiss the wife’s claim for delay, even if the irregularity was cured. [ 24 ] Alberta Courts have found that a dismissal for delay does not prevent a party from commencing a second action for the same cause if he or she is within the applicable limitation period or no limitation period applies to a particular claim: Wittenburg v Wittenburg , 2003 ABQB 154 at para 16 [ Wittenberg ] and Boland v Carew , 2018 ABQB 317 at paras 15 and 16 .

In such a situation, dismissal of the first action would serve no useful purpose and instead could add to the costs and cause further delay: Wittenburg at para 16 . [ 25 ] In Boland v Carew , 2019 ABCA 202 [ Boland CA ], which concerned an application to dismiss a divorce action for long delay after a party applied for spousal and child support, the Alberta Court of Appeal indicated that dismissal for delay was not required under Rule 4.33(2) if the action was still within the limitation period and could be started again. The Court’s reasoning commenced at para 15: We also note that Mr.

Carew did not respond to the argument that to strike the action would lead to unnecessary expense and delay with no resulting benefit as there is nothing to prevent Ms. Boland from recommencing her action for divorce, there being no limitation period on commencing such an action. [ 26 ] The Court of Appeal further explained at para 16: The practical result of granting Mr. Carew’s application would be to require Ms. Boland to commence a new action and bring a new application in order to pursue her claims for a divorce and child support, possibly including an action on their earlier settlement agreement.

Such support is the right of the child and the obligation of the child’s parents. Mr. Carew has not demonstrated that granting the application would be of any benefit to him (beyond perhaps inconveniencing Ms. Boland). This is not a circumstance where Mr. Carew can benefit from the lapse of any statutory limitation period. Had the chambers judge granted the application to dismiss, there would be no bar to Ms.

Boland recommencing an action for identical relief. [ 27 ] No limitation period is specified in the Divorce Act , RSC 1985, c 3 (2 nd Supp ) for a divorce action, or a spousal or child support application: Boland CA at para 1 ; Thalheimer v Chalut , 2021 ABQB 19 at paras 26 and 35 ; Wittenburg at para 16 . [ 28 ] In the present circumstances, even if I were to treat the wife’s spousal support claim as a valid counterclaim and dismiss it for delay, she would not be precluded from commencing a new action seeking spousal support.

That outcome would invite the risk of unnecessary expense and delay which the Court of Appeal spurned in Boland CA . [ 29 ] A similar concern arises with regard to child support. Although the children are adults, they are still being financially supported by the husband while attending university and therefore conceivably remain “children of the marriage” and thus entitled to child support (including the possibility of retroactive support). If I dismissed the notional counterclaim for delay, the wife could commence a new action for child support.

[ 30 ] As a consequence, even if I cured the irregularity with the wife’s pleading, I would conclude that dismissal for long delay is inappropriate, relying on the reasoning in Boland CA . [ 31 ] I therefore decline to cure the irregularity in the wife’s pleading, but without prejudice to the wife’s ability to make such an application on her own motion if she decides to pursue relief for either spousal or child support. The application to dismiss for long delay is refused. Application to Sever Divorce and to Permit Desk Divorce Application [ 32 ] Both parties sought corollary relief in their respective pleadings.

Given the current ages of the children, the issues of custody, access and parenting arrangements are moot. [ 33 ] The husband is supporting the parties’ two daughters by paying their university tuition and providing them directly with a living allowance. Neither party has advanced nor abandoned their respective child support claims. Moreover, the husband cannot rely upon Rule 4.33(2) to have his own claim for child support dismissed: Meilleur at para 19 .

Therefore, the issue of child support remains outstanding, although the current evidence suggests the daughters’ financial needs are being met. [ 34 ] No steps have been taken and there has been no adjudication with respect to the wife’s notional spousal support claim for six years. [ 35 ] Neither party has exchanged financial disclosure to enable a determination of the parties’ respective support claims. [ 36 ] As the Chambers Judge, I have discretion to allow a divorce application to be severed from the corollary relief issues.

The applicable test for severance was confirmed by the Alberta Court of Appeal in Brousseau v Brousseau , 2017 ABCA 75 , being whether severance is fair in the circumstances. In applying the test, the Court should consider whether either party would be prejudiced if severance is granted: Butt v Mansoor , 2018 ABQB 927 at para 43 [ Butt ]. [ 37 ] The husband has indicated that he wishes to move on with his life and re-marry; however, he has not indicated whether he is currently engaged or in a relationship with a person to whom he wishes to become engaged.

If he is engaged, this would favour severance, but would not outweigh other considerations: Butt at para 46 . [ 38 ] The wife has not responded to the husband’s application and therefore I do not know whether she is opposed to the divorce proceeding. [ 39 ] Taking into consideration all of the above facts and circumstances, I am satisfied that the wife and the children will not be disadvantaged if the divorce is severed from the corollary relief issues. [ 40 ] I allow the husband’s application for severance of the divorce. I grant the husband leave to proceed with a desk divorce application.

Heard on the 26 th day of February, 2021. Dated at the City of Edmonton, Alberta this 15 th day of March, 2021. K.S. Feth J.C.Q.B.A. Appearances: C. Nduka Ahanonu for the Plaintiff No appearance for the Defendant