Unterschultz v Clark, 2021 ABQB 492

Court of Queen’s Bench of Alberta Citation: Unterschultz v Clark, 2021 ABQB 492 Date: 20210625 Docket: 4803 171276 Registry: Edmonton Between: Penny Mary-Lou Unterschultz Plaintiff (Respondent) - and - Andrew Greer Clark Defendant (Applicant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] Should an application to vary spousal-support start with a threshold “ prima-facie case for material change” inquiry, focusing on the support payor’s assumed-to-be-true evidence and no evidence from the support recipient? (If the payor clears that hurdle, a fuller inquiry into material change or alternatively (if material change is conceded) the variation aspect would then be heard, with evidence then tendered by the recipient.)

[ 2 ] The recipient asserts this approach, citing efficiency, with the second stage (and evidence from her) unnecessary if no material change is shown. She also cites litigation fatigue after many spousal-support-related applications and other proceedings to date.

Depending on the first-stage outcome, she may not have to produce evidence and undergo cross-examination. [ 3 ] The payor resists, pointing to a parallel review application by him (requiring, per him, evidence from the recipient about her circumstances in any case), the typical unified treatment of variation proceedings (material-change and (if such shown) variation aspects heard together, on the same evidence), and the courts’ general reluctance to segment litigation. [ 4 ] I find that the variation application should proceed in the usual fashion i.e. no threshold prima-facie -case inquiry. B.

Background [ 5 ] This issue arises in the context of case management i.e. setting procedural steps and timelines for spousal-support variation and review applications. [ 6 ] The general history is reflected in Unterschultz v Clark , 2019 ABQB 681 (Germain J.), Clark v Unterschultz , 2020 ABQB 338 (Ross J.), Clark v Unterschultz , 2020 ABQB 423 (Ross J.), WHG Investments Ltd v Unterschultz , 2020 ABQB 621 (Mah J.), WHG Investments Ltd v Unterschultz , 2020 ABQB 753 (Mah J.), and Unterschultz v Clark , 2020 ABQB 755 (Germain J.). [ 7 ] At the root of the current dispute is a three-pronged spousal-support award made by an arbitrator, now reflected in an order by Germain J.: lump sum of $5,000,000, arrears of $400,000, and monthly ongoing of $5,000.

C. Review of periodic spousal support (whether triggered) [ 8 ] Is the $5,000 monthly support provision now reviewable. [ 9 ] Per the arbitrator’s decision (and also as reflected in the Germain J. order), the monthly-support aspect is subject to review in two circumstances: … The periodic spousal support shall be reviewable upon all of the amounts owing under this judgment having been satisfied. Thereafter (or sooner if a clearer picture of [Mr.

Clark’s] financial circumstances emerges), periodic support on a means and needs basis may be reviewed [i.e. once all judgment amounts are paid or once a “clearer picture” emerges]. [ 10 ] All amounts owing under the judgment have not been satisfied. [ 11 ] Has the required “clearer picture” emerged? [ 12 ] The answer is yes, in light of (at minimum) some of the developments described in paragraph 10 of Mr. Clark’s affidavit sworn May 19, 2021: eclipsing of CHI (subparas (

b) and (e)), sale of key building at significantly less-than-expected net proceeds ((f)) and the deterioration in his consulting and employment earnings ((

e) and (l)). [ 13 ] In any case, a clearer picture of Mr. Clark’s overall financial picture has emerged via his October 2020 bankruptcy assignment (para 13 of that affidavit). Mr. Clark has BIA statutory duties to outline his assets and liabilities as of that time, as well as his ongoing income, all reinforced by the trustee’s powers to enforce accurate and comprehensive disclosure. Further, any creditor, including Ms.

Unterschultz, can take on those powers, via s. 38 BIA , if the trustee declines to take any particular enforcement step. [ 14 ] Accordingly, I find that the periodic-spousal-support review has been triggered (“clear picture” now available), with no need to wait until all judgment amounts have been satisfied. [ 15 ] As a result, Mr.

Clark can seek and, per his recent application, has sought both a review of the monthly support and variation of the lump-sum (and possibly arrears) awards. [ 16 ] The focus shifts to whether, on the variation application, the “material change” aspect should be treated as a threshold issue and gauged on the basis of Mr. Clark’s evidence alone, as urged by Ms. Unterschultz. D.

Difference between review and variation applications [ 17 ] In Black v Black , 2015 NBCA 63 , the New Brunswick Court of Appeal distinguished the two species of applications: In this decision, I [Baird JA] will address the different standards to be applied in review and variation hearings , the models of support as they apply in variation motions, and finally, what the Guidelines exceptions provide when the marriage is of short duration and the recipient spouse is disabled. Review hearings carry different evidentiary burdens than variation hearings pursuant to s. 17 of the Act .

In Leskun , the Supreme Court cautioned judges not to order reviews of final spousal support orders unless there is an essential issue requiring review, and only when the terms of the review have been “tightly delimited” in the original order for corollary relief. The rationale for this instruction is grounded in the prohibition against re-litigation of a decided issue. On a review hearing, “nobody bears an onus to show changed circumstances” ( Leskun, para. 39 ).

The recipient spouse should present evidence of his/her efforts to achieve self-sufficiency, and the motion judge can then modify or terminate the order. On a

variation hearing, however, the moving party bears the onus to satisfy the threshold requirement of material change stipulatedin s. 17 of the Act. These are important distinctions that govern how a hearing judge must approach motions to vary spousal support.These distinctions are also of importance to the parties, as, arguably, on a review, it is contemplated that support would continue absentany change towards economic self-sufficiency by the recipient spouse.

On a variation hearing, the hearing judge has broader latitude inthe scope of evidence he/she will receive to conduct the analysis set out in s. 17 of the Act. Hence, it is of critical importance for thehearing judge to identify the jurisdictional basis for the decision, i.e. whether the case falls under the compensatory or non-compensatorymodel of support. In the case at bar, both parties sought a variation of the corollary relief order, thus, both had an onus to provide proofof material change.

The court must have been satisfied “[t]his means a change, such that, if known at the time, would likely have resultedin different terms” (Willick, per Sopinka J. at para. 21). [paras 14-16] [emphasis added] E.

Variation of spousal support (basic principles) [18] As noted, the starting point for variation is ss 17(4.1) of the Divorce Act (“Factors for [variation of] spousal support order”): Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support orderor the last variation order made in respect of that order, and, in making the variation order, the court shall take that change intoconsideration. [19] If a material change is shown, the focus shifts to what variation (if any) should be made.

Subsection 17(7) outlines thevariation objectives: A variation order varying a spousal support order should (

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [20] In LMP v LS, 2011 SCC 64, the Supreme Court of Canada elaborated on this two-step process: In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousalsupport order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs orother circumstances of either former spouse since the making of the spousal support order.

In our view, the proper approach under s. 17 to the variation of existing orders is found in Willick v. Willick, (SCC),[1994] 3 S.C.R. 670, and G. (L.) v. B. (G.), (SCC), [1995] 3 S.C.R. 370. Like the order at issue in thiscase, Willick (dealing with child support) and G. (L.) (dealing with spousal support) involved court orders which had incorporatedprovisions of separation agreements. Both cases were decided under s. 17(4) of the Divorce Act, the predecessor provision to s. 17(4.1).

Willick described the proper analysis as requiring a court to “determine first, whether the conditions for variation exist and if they doexist what variation of the existing order ought to be made in light of the change in circumstances” (p. 688). In determiningwhether the conditions for variation exist, the court must be satisfied that there has been a change of circumstance since themaking of the prior order or variation.

The onus is on the party seeking a variation to establish such a change. [paras 29-31][emphasis added] [21] The parties here agree that the change in circumstances may be those of the payor, the recipient, or both. They also agreethat Mr. Clark bears the onus of showing a material change here. Finally, they agree that Ms. Clark has no legal obligation to tenderevidence at any stage of the variation application. [22] They differ on whether Ms. Unterschultz has a practical onus to give evidence of her financial circumstances, at least at theprima-facie-case-for-material change stage. [23] This brings us to Ms.

Unterschultz’s request for such a threshold inquiry. F. Request to impose a prima-facie-case threshold forvariation application [24] Ms. Unterschultz argues for an initial screening application, on the basis of Mr. Clark’s evidence alone: [We have to see whether] [Mr. Clark] passes the gut-check prima facie [hurdle] to say it is necessary [for us] to go down this [variation]path. [He] can’t even get past the threshold on his best evidence. Assume [a party] puts its best case forward on “material change.” [This is] like

summary judgment: if we accept all he says as true, does it meet the threshold he has to meet before going [further on thevariation application]? [25] Ms. Unterschultz’s counsel did not point to any cases reflecting such an approach to spousal-support variation. She

emphasized what she sees as the repeated (by her count, five in all) and unjustified attempts by Mr. Clark to vary or otherwise undercut Ms. Unterschultz’s spousal-support awards. Per her, that factor warrants the imposition, under case management, of a prima facie -case threshold inquiry. [ 26 ] If Mr. Clark clears that hurdle, purely on the basis of his own evidence (assumed to be true), we would move into a second stage, where “material change” would be explored on the basis of evidence tendered by both parties. [ 27 ] If I misunderstood Ms.

Unterschultz’s submissions here (with the material-change hurdle fully cleared by Mr. Clark i.e. no further exploration of material change), the focus would shift directly to the variation inquiry, with evidence from Ms. Unterschultz put forward then. [ 28 ] Either way, her approach is that, at least initially, she would not have to tender any evidence. [ 29 ] As her counsel explained it, with Mr.

Clark having the onus to prove “material change”, and with the various changes he cites not actually qualifying under the variation case law (e.g. being matters known or predictable with virtual certainty at the time of the arbitration award), and with him not pointing to any particular material changes in her sphere, he will not be able to clear the prima-facie - case hurdle, she will not have been put to the effort of assembling evidence of her complete financial picture or subjected to cross- examination, no variation inquiry will be necessary, and accordingly considerable time and expense will likely be saved. [ 30 ] Mr.

Clark resisted, citing the absence of precedent for such a course, the comprehensive nature of the statutory inquiry per ss 17(4.1) (one application albeit with “material change” as the opening issue), the “in any case” requirement for disclosure of Ms.

Unterschultz’s financial circumstances in the companion review-of-periodic-support application, no clear indication of time, energy and money savings (if fact, the opposite, with a piecemeal approach possibly leading to multiple appeals), and the courts’ general reluctance to split or bifurcate proceedings absent compelling evidence of advantages (none seen here). [ 31 ] The traditional approach is reflected in Gilewich v.

Strand , 2007 SKQB 70 (McIntyre J.): When an application to vary a final judgment or order comes before the court in chambers there are three options: 1) If the court is able to conclude on the basis of the material before it that there has been no material change of circumstance the application is dismissed ; 2) If, on the other hand, the court is able to conclude that there has in fact been a material change in circumstance the court will proceed to the second stage of the inquiry and assuming the affidavit material is adequate the court will make a new order .

The clearest example of this is an application to vary a child support order based upon a change in income. There may be circumstances where even if the court is satisfied that there has been a material change in circumstance it will require either a trial of an issue or a viva voce hearing to resolve the second stage of the inquiry; [and] 3) Where the court is satisfied that the circumstances before it could constitute a material change of circumstance, the court may direct that the matter proceed to a pre-trial conference and a trial .

I do not exclude resolution by other avenues such as directing a trial of the issue or a viva voce hearing, in the appropriate circumstance. [para 10] [emphasis added] [ 32 ] This overview takes as given that the support recipient has tendered evidence from the outset, with “potentially adequate affidavit material” implying evidence addressing the “full circumstances” of the parties at the variation stage, as discussed by Kraus J. in Thember v King , 2019 ABQB 697 at para 9 (affirmed 2020 ABCA 97 ). (See also Krall v Krall , 1999 ABQB 1005 (Veit J.) at paras 55 and 56 ; Craven v Zubot , 2009 SKQB 460 (Sandomirsky J.) at para 13 ; and Yarmo v Friend , 2011 ONCJ 37 (Zisman J.) at para 86 on the “full circumstances of the parties” scope of the variation inquiry.) [ 33 ] The assumption of evidence from both parties also explains the potential need for some kind of viva voce hearing i.e. to iron out possible conflicts in the parties’ evidence. [ 34 ] See also Little J. in Felbel v Felbel , 2007 MBQB 150 : What would happen if a support payor brought an application to terminate spousal support and the recipient opposed but offered no evidence of her own financial circumstances to show there remained a continuing need or an unsatisfied compensatory entitlement?

If one wants to maintain the continuing benefit of an order, one should be providing the relevant evidence that is essential to maintain it . That is doubly so when court rules mandate the provision of that evidence in the first place. … At the end of the day, the issues here are resolved on an analysis of onus, and the extent of the evidence and disclosure each party has mustered, and that which they could have been reasonably expected to have mustered . Has Mr. Felbel [support payor] met his onus to obtain the relief he requests?

Or has he at least put sufficient evidence before the court to shift the evidentiary burden to Ms. Felbel [support recipient]? Has Ms. Felbel met her onus with respect to her own motion? Or has she put sufficient evidence before the court to displace the evidentiary burden once it shifts to her on Mr. Felbel’s application for termination? Are adverse inferences to be drawn? This is after all a civil proceeding. Ms.

Felbel has no “right to remain silent”. [paras 2, and 25] [emphasis added] [ 35 ] All to say: the traditional approach does not contemplate the recipient tendering evidence only if and when the payor makes out a material change. [ 36 ] The question here becomes: should we effectively split the proceeding, and not just in the sense of (as is always done) determining first whether a material change has occurred, but conducting a true stand-alone inquiry, on a subset of the potentially available evidence (i.e. Mr.

Clark’s affidavit), assumed to be true, to gauge whether he can demonstrate a prima-facie material change (or more than one). Only if he were to clear that hurdle would we move to a separate application, on possibly broader evidence (i.e. if Ms. Unterschultz then chooses to give evidence of her financial circumstances) to either re-explore the material-change issue or move directly to the variation inquiry.

[37] When are proceedings split, or bifurcated, like this, and what are the accepted reasons for doing so? G. Law on splitting or bifurcating proceedings [38] The Alberta Court of Appeal has explored when such a step is appropriate, including in the family-law context.

In Lakhoo vLakhoo, 2014 ABCA 98 (SCC leave dismissed [2014] SCCA No 203), it emphasized time and resource savings, finding none there: It appeared to the chambers judge that as the claim for disclosure rested on the validity of the [pre-nuptial agreement], it might beexpeditious to proceed by first determining the validity of the PNA, and should it be found to be valid, that would obviate theneed for disclosure of financial records relating to Mr. Lakhoo’s investments embraced by the PNA. If only it was that easy.

Unfortunately, there remains the matter of spousal support and unless the parties agree on the quantum andduration of the spousal support Mr. Lakhoo should pay Mrs. Lakhoo, (who has not worked since the marriage), it seems that disclosureof this financial information will be required in any event. In other words, there would be no saving of time or resources if thetrial were split as the chambers judge has directed.

This court has previously said that trials should not be split unless the savings areclear or at least probable (See: Gallant v Farries, 2012 ABCA 98, 522 AR 13; Edmonton Flying Club v Edmonton Regional AirportsAuthority, 2013 ABCA 91 at paras 15-16, 544 AR 6). [appeal allowed – no bifurcated trial] [paras 5 and 6] [emphasis added] [39] In Smigelski v Smigelski, 2015 ABCA 320, where the chambers judge had directed a (preliminary) trial of an issue (validityand scope of a pre-nuptial agreement) under Rule 7.1(1)(a), the Court of Appeal perceived overlap between issues that the “issue trial”might eclipse and issues that would have to be explored anyways: Pursuant to Rule 7.1(1)(

a) the Court may order an issue to be tried before trial for the purpose of: (

i) disposing of all or part of a claim;(ii) substantially shortening a trial; or (iii) saving expense. A trial should not be split unless the savings are clear or at leastprobable: Gallant v Farries, 2012 ABCA 98, 522 AR 13.The chambers judge found that the savings were probable here as therewas a “real good chance” that the trial on the issue of the pre-nuptial agreement could save considerable time and funds for theparties in the event the husband was successful. Splitting trials is the exception, not the rule.

There may be situations where it is clear or probable that time and money could besaved by determining the validity and scope of a pre-nuptial agreement prior to a trial on the issue of spousal support. However,where the claims overlap, the savings are less likely. This is particularly so where the source of the payor’s income for thepurposes of spousal support is also one of the assets potentially available for division as matrimonial property. [reference toLakhoo v Lakhoo (cited above)].

Here, the husband says that unlike Lakhoo, he has provided all of the disclosure necessary to determine his income, there is aninterim spousal support order in place, and he is subject to the ongoing requirement to disclose. He contends that businessvaluations are not required to determine support since there is no issue as to his ability to pay support. What is clear, however, is thatsome portion of the trial will be devoted to evidence about the businesses, and the income they generate. There may need to beevidence from accountants.

The issues are not so separate that it is clear or probable that time and expense will be saved.Moreover, there is the allegation that the husband is moving money from one company to the other to reduce his income in order toaffect the quantum of spousal support. To pursue that allegation, there will need to be more evidence about the businesses. The main saving by bifurcating the trial is the cost of the business valuations.

When compared to the cost of two trials (one of twodays and a second of at least five days), plus the cost of potential appeals, there is little probability of any meaningful saving.Further, there may be credibility findings: one judge needs the entire picture. [appeal allowed – no bifurcation] [paras 6-9][emphasis added] [40] On providing parties the opportunity to address whether a given issue should be heard “up front”, see Kresnyak v Kresnyak,2019 ABCA 247 (paras 1-5). [41] In Smith v Torelli, 2013 ONSC 1936, Nelson J. outlined key considerations in gauging whether to break out one or moreissues for threshold determination.

In that case, the applicant sought a preliminary determination on entitlement to child support forcertain years i.e. before income disclosure was explored. Nelson J. declined, on the following analysis, finding various “savings” to belargely illusory (with forecasted “would not be needed” inquiries likely necessary regardless of the outcome of the upfront issue): The court has inherent jurisdiction to sever issues to be tried where it would be just to do so.

This jurisdiction is codified in FamilyLaw Rule 12(5), which provides: If it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases,claims or issues, the court may, on motion, order accordingly. As the Ontario Superior Court explained in Simioni v. Simioni, (2009) (ON SC), 74 R.F.L. (6th) 202 at para. 15, thispower ought to be exercised where it is convenient and where it would be in the interests of justice to do so.

The interests ofjustice will be served where “there are clear time and expense benefits to be gained from the bifurcation and determination of thethreshold issue, provided no real or meaningful prejudice is caused to either party (para. 16).” However, the court also explained, atpara. 16: it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible,multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowlycircumscribed and to be exercised in only the clearest of cases — in cases that exhibit the exceptional merit that calls upon theCourt to exercise its inherent power. [Citations omitted].

In light of the exceptional nature of the order, the onus lies upon the party seeking bifurcation to satisfy the court on a balance ofprobabilities that, if granted, severance will result in the “just, expeditious and least expensive determination of the proceedingon its merits:” Simioni, at para. 17. The onus then is on the Respondent to show that a trial of the issue of entitlement to retroactivechild support for the years 1995-2007, before providing financial disclosure for that period, will result in the just, expeditious, and leastexpensive determination of this proceeding on its merits.

Once that burden is met, it is up to the Applicant to demonstrate realprejudice that outweighs any such expediency. The thrust of the Respondent’s argument on bifurcation is that severing the issue of entitlement for the years prior to 2007 couldgenerate savings in terms of time and expense because the Respondent would not need to provide disclosure or determine hisincome for those years, and, if no entitlement is found, the issues in the main application would be narrowed substantially.

Inparticular, the Respondent submits that significant professional fees would have to be spent to respond to the Applicant’s requestfor disclosure. He submits that the cost for an accountant alone to do an income analysis would be approximately $100,000.00. Counselfor the Respondent submits further that if the issue is not severed, the Respondent will also be forced to account for all of thepayments he made during that time to the Applicant. This will involve significant time and expense as neither party has anyrecord of the amounts paid.

During oral submissions, counsel for the Applicant disputed that figure of $100,000.00 relied on by theRespondent, stating that the estimate provided was $40,000.00 plus HST. Indeed the Respondent’s affidavit provides that anaccountant’s estimate was that it would cost $40,000.00 for an income analysis for the years 1995-2011. The Respondent relies on a number of Ontario cases where the courts have severed “preliminary” or “threshold” issues beforerequiring a spouse to make significant financial disclosure: Mantella v. Mantella, (ON SC), [2006] O.J. No. 1337(S.C.J.), at para. 64; Johnson v.

Johnson, (ON SC), [1986] O.J. No. 2506 (H.C.), at para. 17; Marton v.Marton, [1988] O.J. No. 1358 (H.C.), at p. 5. The Respondent also relies on the Ontario Superior Court decision in J.L.L. v.S.B.L., [2006] O.J. No. 1703 (S.C.J.) as an example of a case in which bifurcation was used to resolve a threshold issue that wouldeliminate the second stage of the application. J.L.L. v. S.B.L involved an application for a change in a custody and access order wherein the court had to consider whether accessshould be terminated because the access parent had been diagnosed with a serious mental disorder.

The application wasbifurcated so that if the court were to conclude, at the first stage, that the diagnosis was incorrect and access should continue, thenext stage would be whether access should be supervised. While this case does indeed provide an example of bifurcation, the factsand issues in that case were so fundamentally different from the facts in the case at bar, that I do not find it particularly helpful. The remaining cases relied on by the Respondent are all cases in which the validity of separation agreements was severed and triedbefore support, property, or other issues were to be determined.

It is of some interest to note that none of these cases deal with theissue of severance with respect to entitlement where retroactive child support is an issue. In fact, counsel has advised that their researchwould seem to indicate that there are no cases directly on point. I do not find the cases severing the issue of the validity of a separation agreement particularly helpful.

The validity of a separationagreement is a threshold issue that revolves around the determination of different facts (usually the circumstances surroundingthe making of the agreement) and the application of different legal principles (unconscionability, mistake, and so on) fromsubsequent issues of support or property division (which relate largely to current financial circumstances). In the case at bar, theRespondent is asking the court to order separate trials on the same issue: retroactive child support, albeit for different periods.

Itseems to me that a trial on the issue of whether there is entitlement for the period of 1995-2007 would look very similar to a trialon the issue from 2007 onwards. The factors to consider in both cases would be those identified in D.B.S.: was the recipients delayunreasonable; did the payor engage in blameworthy conduct; do the circumstances of the children favour an award; would there beunreasonable hardship to the payor; when did the payor parent have effective and formal notice; and which notice date, if any, isrelevant.

A trial on the issue of retroactive support from 1995-2007 and a trial on the issue of retroactive support for 2007onwards would require evidence be marshalled on many of the same issues, because both questions require a determination ofmany of the same factual issues and the application of the same legal principles.

It may be the case that after making the relevantfactual determinations, and applying the legal principles, a trial judge finds that a claim for support before 2007 cannot be sustained, butthere would be a great deal of overlap in issues to be determined and the legal principles to be applied for both time periods. … During oral argument, counsel for the Respondent expressed concern about the cost of an income analysis and, indeed, theRespondent’s affidavit expresses concern about other professional fees that may have to be expended for disclosure going back to1995.

It seems to me that, after making the proper disclosure, it may not be necessary or appropriate to conduct an incomeanalysis. In any event, the Applicant is not currently seeking an order for an income analysis; she is seeking the Respondent’s taxinformation as well as details on shareholdings and property ownership for the period. This demand is not as onerous as theRespondent is attempting to suggest at this time. I am also mindful of the fact that the Applicant seems to be of far more limited meansthan the Respondent.

The Respondent could, therefore, gain the tactical advantage that might accrue to him as the party of greater meansshould I order a severance of the issues. It is not entirely clear to me why severing the issue of child support for the years 1999-2007 and ordering that a trial first be heldon that issue should do away with the obligation on the Respondent to provide disclosure for that period. As outlined above, itseems to me that the D.B.S. analysis, and in particular, its discussion of blameworthy conduct, requires the disclosure of incomeinformation for that period.

Thus, even if I were to order a bifurcated trial it seems that both the Applicant, and the trial judge,would require information on the Respondent’s income for that period. It is not clear to me why ordering a bifurcated trial shouldabsolve the Respondent of his obligation to provide disclosure. The law on severance is clear that the litigant’s right to a single trial on all of the issues is not to be easily displaced, and severanceis reserved only for the clearest of cases: Simoni, at para. 16; General Refractories Co. of Canada v.

Venturedune Ltd., at paras. 10-11.The case at bar does not meet this high threshold. In particular, it seems that there would be a great deal of overlap in the evidencemarshalled and the case law applied for the two trials covering the pre- and post-2007 period. It is not clear that there are time andexpense benefits to be gained from the bifurcation and determination of the issue of entitlement to child support for the 1995-2007period. Further, concerns about the cost of disclosure may be addressed by limiting the scope of disclosure, at least initially.

Finally, Rules 2(2)-2(4) of the Family Law Rules state as follows: Primary Objective

(2) The primary objective of these rules is to enable the court to deal with cases justly . Dealing with Cases Justly

(3) Dealing with a case justly includes, (

a) ensuring that the procedure is fair to all parties; (

b) saving expense and time; (

c) dealing with the case in ways that are appropriate to its importance and complexity; and (

d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. Duty to Promote Primary Objective

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. Given the analysis of the D.B.S . factors, and having reviewed the cases submitted on the issue of severance, I find that severing the issue of entitlement would not be fair to the Applicant and would likely not save expense or time. In fact, such an order might increase expense, especially to the Applicant. Moreover, it is more appropriate from a court resource point of view to have a single trial . [paras 42-55] [emphasis added] H.

Applying those principles here [ 42 ] Here are the key factors here: • Ms. Unterschultz is not obliged to tender any evidence, at any stage.

A payor’s bid to vary may fail at the “material change” point, even with no evidence from the recipient, with no further (variation) inquiry needed: see, for example, Harding v McCullough , 2012 ONSC 6717 (Murray J.) where that happened in a parenting context (paras 13, 17, and 18); • if a payor points to material changes (presumably improvements) in the recipient’s circumstances (e.g. remarriage or re- partnering), the recipient may have a practical onus to provide evidence: see, for example, Lalonde v Lalonde , 2014 ONSC 4925 (Gauthier J.) at para 58 and Clarke v Clarke , 2014 BCSC 824 (Baird J.) at para 29 ; • same practical onus where the recipient alleges a state of affairs such as the payor hiding income, and the payor provides apparently reasonable “not hiding” evidence: Punzo v Punzo , 2016 ONCA 957 at paras 26-29 ; • under the traditional “unified application” approach, it would not be open to Ms.

Unterschultz to tender evidence only if and when Mr. Clark clears the “material change” hurdle.

She would have to be taken as having effectively gambled that no material change could be shown; • the statutory anchor for a variation application (ss 17(4.1)) makes no reference, explicit or implicit, to two separate applications (instead, the requirement that “material change” be explored as the first order of business at the one application); • hence her effective request here for bifurcation i.e. two separate applications, on different evidentiary foundations (potentially expanded, by her evidence, on the second application, if reached) i.e. an exception to the typical all-in-one application; • with no apparent appeal of the periodic-spousal-support-review element of the arbitrator’s decision (if an appeal were possible), and with the trigger for that review satisfied, Mr.

Clark is entitled to the “clearer picture” review, on which Ms. Unterschultz has at least a practical obligation to give evidence of her current financial circumstances. That is, even if she hopes to avoid doing so with a “no material change” win on the variation application, she has to make such disclosure anyways; • Ms.

Unterschultz did not point to any reported case featuring, approving or even discussing the prima-facie -case model she proposes here; • her concerns about over-litigation of spousal support are better met by existing legal mechanisms (e.g. res judicata, issue estoppel, abuse of process, elevated costs, etc.) i.e. if she believes their requirements are met here; • adopting the piecemeal approach proposed raises the risk of multiple appeals, and given the litigation history here, that is more than a theoretical risk; and • the very proposing of the prime-facie -case model has already consumed extra resources (leading to the current debate, my call for further submissions, research by the parties, and this judgment.).

I. Conclusion

[ 43 ] For these reasons, I deny the request to impose, as a case-management direction or otherwise, a threshold requirement for Mr. Clark to make out a prima-facie “material change” case. [ 44 ] Instead, the variation application will unfold in the typical (unified-application) manner. [ 45 ] If the parties require directions (augmenting, replacing, or amending existing directions) on the procedural mechanics for the variation or review applications (or both), I invite them to contact me via my assistant (Stacy Adams). [ 46 ] I thank the parties for their helpful submissions.

Heard on the 27 th day of May, 2021 and 18 th day of June, 2021 with written submissions received on 4 th and 11 th of June, 2021. Dated at Edmonton, Alberta this 25 th day of June, 2021 . M. J. Lema J.C.Q.B.A. Appearances: Michael R. Kinash, Q.C. Bryan & Company LLP for the Applicant Tina Huizinga Huizinga Di Toppa Coles & Layton for the Respondent