Piers v Piers, 2021 ABQB 299

Court of Queen’s Bench of Alberta Citation: Piers v Piers, 2021 ABQB 299 Date:20210416 Docket: FL03 59878 Registry: Edmonton Between: Keith Nelson Piers Applicant/Cross-Respondent - and - Navia Rose Piers Respondent/Cross-Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M. Hayes-Richards _______________________________________________________ Background [ 1 ] The parties married on April 2, 2015, and separated shortly thereafter. In or around July 20, 2016, they both signed a Divorce & Property Contract (“Contract”).

The Contract transferred half of Mr. Piers’ inherited farmland to Ms. Piers. In August 2017 and January 2018, Ms. Piers sold the land for over $2 million. [ 2 ] Ms. Piers filed a Statement of Claim for Divorce July 26, 2017, that did not address property division or the Matrimonial Property Act , RSA 2000, c. M-8 (“ MPA ”). A Divorce Judgment was granted September 22, 2017. Mr. Piers filed a Statement of Claim

for Division of Matrimonial Property July 30, 2019, claiming, among other things, that the Contract is invalid and illegal due to non- compliance with sections 37 and 38 of the MPA , mistake, breach of contract, lack of adequate financial disclosure, misrepresentation, undue influence, duress, unconscionability, and lack of independent legal advice. [ 3 ] A Consent Preservation Order was granted September 5, 2019, freezing Ms. Piers’ investments, but permitting her to withdraw monthly sums in accordance with the terms of the order. By application filed September 24, 2019, Ms. Piers sought

summary judgment and cancellation of the preservation orders. A Consent Order was granted October 28, 2019, by Gates J, directing that the

summary judgment application be determined by a trial or trial of an issue to determine the validity of the Contract. [ 4 ] This matter came before me as a one-hour Special Family Chambers application and cross-application. Mr. Piers had brought an application seeking to have Ms. Piers cited in contempt, to vary terms of the preservation orders and to compel Ms. Piers to answer questions and provide undertakings. Ms. Piers then filed a cross-application for

summary judgment, despite the October 28, 2019, Consent Order of Gates J. that there should be a trial or trial of an issue to determine the validity of the Contract. [ 5 ] Mr. Piers’ applications were dealt with in court and an order was made on the record. Discussions took place respecting whether the cross-application for

summary judgment should be heard in a one-hour Family Special when it had previously been ordered to be heard at trial or a trial of an issue, and it was clear that the parties dispute many of the circumstances surrounding the signing of the Contract such that viva voce evidence may be necessary. Ms. Piers submitted that it was her position that Mr. Piers’ Statement of Claim for Division of Matrimonial Property is barred by the limitation period set out in s. 3 of the Limitations Act , RSA 2000, c. L-12 (“ LA ”) and agreed that it would be helpful if the Court could at least determine that issue. Mr.

Piers agreed that it would be helpful if the Court determined that issue, taking the position that it is actually the limitation period in s. 6 of the MPA that applies. Consequently, the only issue being determined in the cross-application and in this decision is the interplay between the limitation periods in s. 3 of the LA and s. 6 of the MPA . Analysis [ 6 ] Ms. Piers submits that the entirety of Mr. Piers’ claims in his Statement of Claim for Division of Matrimonial Property are statute barred by s. 3(1)(

a) of the LA . She argues that the latest date upon which Mr. Piers had knowledge of all the facts would have been July 20, 2016, when he signed the Contract in front of a lawyer. Consequently, she says the relevant limitation date would be two years after that date, namely July 20, 2018 and Mr. Piers did not file his Statement of Claim until July 30, 2019, which is outside the limitation period. [ 7 ] Mr.

Piers’ position is that the limitation period in s. 6 of the MPA applies, which means the appropriate limitations date for the filing of his Statement of Claim is two years from the date the Divorce Judgment was granted. As the Divorce Judgment was granted on September 22, 2017, the limitations deadline is September 22, 2019, and the Statement of Claim was filed July 30, 2019, well within the deadline. In support of his position, Mr. Piers points to s. 2(4)(

b) of the LA which states that the LA does not apply where the remedial order sought is subject to a limitation provision in any other enactment of the Province. Consequently, if s. 6 of the MPA applies, then the limitations in the LA do not apply. The issue then comes down to whether s. 6 of the MPA applies. [ 8 ] Mr. Piers says that s. 6 MPA applies because the Contract is non-compliant with sections 37 and 38 of the MPA .

Section 37 of the MPA says that

Part 1 of the MPA does not apply to s. 37 agreements if they are enforceable under s. 38 .

Part 1 of the MPA contains the s. 6 limitations period. Consequently, if the Contract is enforceable under s. 38 of the MPA , then the s. 6 limitation does not apply, and the matter would fall under s. 3 of the LA . Conversely, if the Contract is not enforceable under s. 38 of the MPA , then the s. 6 limitation period does apply. [ 9 ] In response to Mr. Piers’ position, Ms. Piers submits that it cannot be successfully argued that the appropriate limitations date is that specified in s. 6 MPA because s. 6 MPA does not apply to written agreements entered into pursuant to s. 37 .

She says that the Contract must first be set aside for a lack of compliance with s 38 MPA before s. 6 MPA would even be applicable. She says that consequently, the limitation period respecting a challenge to the Contract would be the first step and only if that date were met would one then turn to considerations respecting the bringing of an application for a matrimonial property order. This approach, she says, would confirm a harmonious

interpretation of sections 6, 37 and 38 of the MPA and s. 3 of the LA . In support of her overall position Ms. Piers relies on Pecharsky v Pecharsky , 2019 ABQB 219 (“ Pecharsky ”). [ 10 ] I disagree with Ms. Piers’ position for a number of reasons. [ 11 ] First, I find that Pecharsky is clearly distinguishable to the sole issue before me. In Pecharsky , Gates J. had to determine whether the provisions of the LA barred an application for the remedy of rectification of a post-nuptial agreement. By the time he considered the issue, he had already determined the proper

interpretation of the post-nuptial agreement, the language of which he found to be plain and unambiguous. There was no suggestion in Pecharsky that the post-nuptial agreement was non-compliant with s. 38, and therefore no argument that the limitation period in s. 6 MPA applied. The argument was that the claim was statute barred under s. 3 LA because more than two years had elapsed since the parties signed the post-nuptial agreement.

Arguments were made about whether and when the plaintiff knew or ought to have known about an alleged discrepancy between the terms of the post-nuptial agreement and the content of a separate letter because those arguments were relevant to determining the limitations period under s. 3 LA . I find that Pecharsky is limited to its facts and nothing in the case suggests that you always start with the limitation under s. 3 LA when considering a post-nuptial agreement.

Pecharsky was not a case involving a challenge to compliance with s. 38 MPA , and is not helpful in determining the sole issue before me. [ 12 ] Second, s. 4(2)(

b) LA specifically says that the provisions of the LA do not apply if the remedial order sought is subject to a limitation provision in any other Provincial enactment. The remedial order sought in this case is subject to another limitation provision, that in s. 6 MPA , if the Contract is unenforceable for non-compliance with sections 37 and 38 MPA . It would make sense then that the issue of non-compliance with sections 37 and 38 needs to be determined before the Court can consider which limitation provision applies. Under Ms. Piers’ approach, that could never happen. [ 13 ] Third, if Ms.

Piers is correct, and one always looks to s. 3 LA first to determine if the case was brought within the s. 3

limitation period, there would be little ability to ever challenge a pre-nuptial agreement for non-compliance with s. 38 MPA , except in the shortest of marriages. For example, if parties entered into a s. 37 MPA pre-nuptial agreement that was non-compliant with s. 38 , and separated twelve years later, neither party would be able to argue non-compliance with s. 38 . Such a claim would always be statute barred because the s. 3 LA limitation period would have long passed. The parties would have been aware of the pre-nuptial agreement when it was originally signed and the limitation period would expire after two years. What would then be the purpose of specifically indicating in s. 37 that

Part 1 of the MPA , namely the s. 6 limitation period, does not apply to agreements compliant with s. 38 ? In such cases s. 6 would not apply even if the agreement was non-compliant with s. 38 . [ 14 ] I find that in order to determine whether the limitation period in s. 6 MPA or s. 3 LA applies to this case, the Court must first determine whether the Contract is compliant with s. 38 of the MPA . If it is not compliant, then the limitation periods in s. 6 MPA apply. If it is compliant, then s. 6 MPA does not apply because s. 37 MPA says that

Part 1 of the MPA does not apply, and the limitation periods in s. 3 LA would apply. [ 15 ] I was not asked to determine whether the Contract is s. 38 MPA compliant. Heard on the 17 th day of March, 2021. Dated at the City of Edmonton, Alberta this 16th day of April, 2021. M. Hayes-Richards J.C.Q.B.A. Appearances: K. Proudman for the Applicant/Cross-Respondent Keith Nelson Piers L. Schey for the Respondent/Cross-Applicant Navia Rose Piers