Quinn v Fong, 2021 ABQB 552

Court of Queen’s Bench of Alberta Citation: Quinn v Fong, 2021 ABQB 552 Date: 20210720 Docket: 4803 188466 Registry: Edmonton Between: Tim Quinn Plaintiff - and - Anne Fong Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] The parties ended a relationship that lasted for over thirty years when they separated in 2017. There are 2 adult children of their marriage. Formal litigation proceedings were initiated in 2019 seeking divorce and matrimonial property relief.

According to an Agreed Statement of Facts dated June 10, 2021, there is no unjust enrichment claim being advanced. [ 2 ] This matter was set down for a hearing pursuant to rule 7.1 of the Alberta Rules of Court . The order setting this matter down identified the following issues for preliminary determination: (

a) the validity of a notarized pre-nuptial agreement dated June 29, 1988 pursuant to the provisions of the Quebec Civil Code

(the “ Quebec Agreement ”); and (

b) the s cope of the Quebec Agreement and a property contract dated January 25, 1996 pertaining to a property bearing the municipal address 11332 – 73 Avenue, Edmonton (the “Alberta Agreement”), as they pertain to other matrimonial property claims before the Court . [ 3 ] The experts retained by each party ultimately agreed that the Quebec Agreement was validly executed in accordance with the provisions of the Civil Code. The experts also agreed that the regime of “Separation as to Property” was selected by the parties. Thus, issue (

a) may be readily addressed in this proceeding. I am satisfied on the evidence that the parties met with a Notary Public and duly executed the Quebec Agreement and therefore, the formalities required for a marital contract under the law of Quebec were met. Consistent with the experts’ opinion, I conclude that the Quebec Agreement was validly executed in accordance with the requirements required by the Province of Quebec and the Civil Code. [ 4 ] However, the determination of issue (

b) is not straightforward. During the hearing, I raised a concern about whether I could deal with this issue on a preliminary basis because addressing the scope of the Quebec Agreement and Alberta Agreement raises questions around enforceability and treatment of the agreements relative to all matrimonial property, notwithstanding there being a limited evidentiary record before me. In written submissions and in oral argument, counsel to Dr.

Fong submitted that I am not being asked to affect the distribution of matrimonial property, but rather identify what effect the Quebec Agreement and subsequent Alberta Agreement have on the distribution of matrimonial property. In counsel’s words, I am only being asked to determine what property is divisible. [ 5 ] Counsel to Mr. Quinn disagreed and argued that adopting a “hybrid” approach as suggested by Dr. Fong’s counsel goes too far.

It was submitted that I should find the Quebec Agreement unenforceable for non-compliance with the Family Property Act , RSA 2000 c F-4.7 by 2018 c 18, s.2(2) [formerly the Matrimonial Property Act ] (the Property Act ). [ 6 ] For the reasons outlined herein, I agree with counsel to Mr. Quinn that I am not able to adopt the approach outlined by Dr. Fong’s counsel and that the Quebec Agreement is unenforceable.

However, that finding is not determinative of the matrimonial property division issues presented in this case because even an unenforceable agreement is to be considered by a Court when dividing matrimonial property. I conclude that addressing the scope of the Quebec Agreement and Alberta Agreement in the context of the matrimonial property claims before the Court must be reserved for trial of this matter.

In my view, determining what property is divisible based on the limited evidentiary record available would not be appropriate because my findings could unduly interfere with the trial judge’s ability to address the matrimonial property issues in a just and equitable manner after hearing the full trial. For this reason, in accordance with the authority provided by rule 7.1(

d) of the Alberta Rules of Court , I direct that issue (

b) be determined at trial unless the parties mutually agree to participate in an alternate dispute resolution process or are otherwise able to reach a resolution. I. The Parties’ History [ 7 ] The parties met while living in Vancouver and started co-habiting in August 1983. Dr. Fong moved to attend medical school at McGill University and Mr. Quinn also moved to Montreal and continued his educational pursuits. The parties got married in Montreal in July, 1988. [ 8 ] Upon graduation, Dr. Fong completed her residency in Calgary before moving to Saskatchewan to complete her practicum.

The parties offered different reasons for their move to Saskatchewan. Mr. Quinn indicated they moved there for Dr. Fong’s training, whereas Dr. Fong suggested that they moved because Mr. Quinn found a job working in his field of study. The parties also disagreed as to why they moved to Edmonton in or around 1994. Mr. Quinn testified that they moved to Edmonton because Dr. Fong wanted to be closer to her elderly parents, whereas Dr. Fong suggested that the move to Edmonton was precipitated by Mr. Quinn’s acceptance into a Master’s program at the University of Alberta.

In any event, the parties have resided in Edmonton ever since. [ 9 ] Mr. Quinn completed a Master of Science in 1997. He continued employment in his field of study and incorporated his own company, Contech Environmental Inc., which operated from 2003 to 2012. In 2003, Mr. Quinn started receiving a salary from Dr. Fong’s Professional Corporation. He was paid as a salaried employee until the parties’ separation in 2017. [ 10 ] Since graduating from medical school in 1990, Dr. Fong has worked as a general family practitioner. Dr.

Fong has an established practice in Edmonton and for many years, has worked every Monday, Tuesday and Thursday from 12:30 to 6 pm, and every Monday and Friday from 10 am to 3:30 pm. She also hired a locum for 2 or 3 months for several years, allowing her time to attend to other matters (including vacation) during spring break, summer or fall seasons. According to Dr. Fong, she worked fewer hours than many family practitioners in order to attend to family matters. A.

The Agreements at Issue [ 11 ] The parties entered into the Quebec Agreement prior to their marriage, and then entered into the Alberta Agreement during the course of their marriage after they had moved to Edmonton. i. The Quebec Agreement [ 12 ] The Quebec Agreement was entered as Exhibit 1, Tab 2. Prior to getting married, the parties attended before a Notary Public and signed the Quebec Agreement selecting the Separation as to Property regime. [ 13 ] Mr. Quinn did not recall having a specific discussion about why the Quebec Agreement was entered into, other than Dr.

Fong mentioning that she would be receiving family jewelry as wedding gifts and they discussed the need for a marriage contract in that context. Mr. Quinn’s understanding was that entering the Quebec Agreement was simply something that had to be done to get married

and he thought he was signing the marriage certificate, though he recalled the Notary reading the contract to him before signing. He did not speak to a lawyer about the contract, nor did he speak with any family member. [ 14 ] Dr. Fong indicated that after her bridal shower, she spoke with Mr. Quinn about entering a marital contract to make sure that he kept what was his and she kept what was hers. She testified that they shared grocery, rent and utility expenses, but otherwise kept their financial affairs separate, including their debts.

They went to see the Notary Public who explained the different regimes, one being where everything was kept separate and one where you divide everything. The parties told the Notary that they wanted to keep everything separate. They returned to see the Notary three days prior to the wedding and everything was explained to them again during a shorter appointment. They signed the Quebec Agreement at the end of the second appointment. ii. The Alberta Agreement [ 15 ] The Alberta Agreement was entered as Exhibit 1, Tab 4 of the current proceeding. Clauses 1 and 2 of the Alberta Agreement state: 1.

The Husband agrees to surrender and release all claims in the Property to the Wife and agree to execute a dower release in respect of the Property Legally described as PLAN 1324HW BLOCK 6 LOT 8 [sic in original]. 2. The Husband agrees and waives his rights under the Matrimonial Property Act of Alberta and any law of Alberta to claim an interest in the Property. The Property shall be the sole property of the Wife without any claim by the Husband whatsoever. The Husband gives up any claim at law and in equity in the Property to the Wife. [ 16 ] Mr. Quinn testified that it was Dr.

Fong’s idea to enter into the Alberta Agreement because the 11332 property (as defined below) was her father’s house originally, which held sentimental value for her, and her father purportedly wished to make sure that it became her house. Mr. Quinn prepared a spreadsheet outlining a payment

schedule for Dr. Fong to pay her father, as she did not seek mortgage financing. The home was purchased in Dr. Fong’s name and then eventually was sold to her Professional Corporation. [ 17 ] During cross-examination, Mr. Quinn referred to the Alberta Agreement as the “dower claim” and clarified that he thought he was releasing his dower rights through this contract. I note during questioning, Mr. Quinn was asked what his understanding of the Alberta Agreement was, and at that time, he stated at transcript page 24, lines 12 to 23: Was that she was going to be the owner of the house.

She was already the owner of the house, but she wanted to be the owner of the house without me. I said that is fine, because we had purchased 11336 together, and I knew that she felt strongly, you know, from the – you know, her father had owned it, so she felt strongly about that. I knew that – she played that game with me every time, because she knew that I never wanted to get divorced, and that I would do just about anything to stay married. That is one of the reasons right there for that. [ 18 ] During that same questioning, Mr.

Quinn acknowledged that he had a lawyer present when he signed the Matrimonial Property Act Acknowledgement, and that was signed separate and apart from Dr. Fong. [ 19 ] Dr. Fong testified that the Alberta Agreement came about because her father initially wanted to give her the 11332 property, but she wanted to buy it. She denied the property had sentimental value. They ultimately agreed that he would sell the property to her below market price but he wished to ensure that no one else would receive the 11332 property. Dr. Fong recalled speaking with Mr.

Quinn about it and they took steps to enter into the Alberta Agreement. II. Real Estate Properties [ 20 ] During the course of the marriage, the parties acquired several real estate properties.

Schedule A to the Agreed Statement of Facts listed the properties owned by the parties personally, or through corporate entities. These are the properties that Dr. Fong’s counsel asks I consider in relation to Quebec Agreement and Alberta Agreement. [ 21 ] Other than the list of properties and information outlined below, I was not provided with any evidence of the current value of these properties. I also did not receive comprehensive evidence respecting the parties’ other assets including the current balance of any accounts, investments or debts. A.

Personally-owned properties [ 22 ] The following are properties held jointly by the parties, or owned personally by one of the parties in his or her own name, during the course of the marriage. (i) 11332 73 Avenue (“11332”) – Dr. Fong purchased this property, being the subject of the Alberta Agreement, from her father in 1996 for $120,000. The parties resided in 11332 as their matrimonial home. In 2012, 11332 was sold to Dr.

Fong’s Professional Corporation for $467,000 and the proceeds of sale were put towards to the purchase of the parties’ new matrimonial home in 2013 located at 731 Riddell Street. (ii) 11336 73 Avenue (“11336”) – The parties purchased this home in 1996, each contributing 50% of the down payment. The parties are listed as joint tenants and have rented 11336 to tenants since it was purchased. (iii) 731 Riddell Street (“Riddell”) – This home was purchased for $715,000 by the parties in 2013 using the $467,000 proceeds of sale of 11332. Dr.

Fong and the parties’ two adult daughters have continued to reside in the Riddell home since the parties separated in 2017.

(iv) 9831 86 Avenue (“9831”) – Mr. Quinn purchased this property with Dr. Fong’s brother in 1998 and it was used as a rental property. They held the property as joint tenants until Mr. Quinn sold his 50% interest to Dr. Fong’s brother in 2017 for approximately $260,000 to $265,000. (v) 10843 79 Avenue (“10843”) – This was purchased by Dr. Fong’s father in 2001 to be used as a rental property. Dr. Fong’s name was added to title at some point, but she contributed no funds to the property. 10843 was sold in 2017 and all net sale proceeds were paid to Dr. Fong’s father directly from the buyer. B.

Properties held by Dr. Fong’s Professional Corporation [ 23 ] There are a number of properties held by the Professional Corporation. (

i) Unit 804, Mcleod Building – This property was purchased in 2003 and is used as a rental property. (ii) 38 Heron Point, Village of Pigeon Lake – This empty lot was purchased in 2006. (iii) 15411 93 Avenue – This commercial condominium was purchased in 2009 and is where Dr. Fong’s medical practice operates. (iv) 10636 75 Avenue – This property was purchased in 2011 and is used as a rental property. (v) 11332 – This property was purchased from Dr. Fong in 2012 and is being used as a rental property. C.

Properties held by 1867678 Alberta Ltd. (“186 Alberta Ltd.”) [ 24 ] 186 Alberta Ltd. holds a number of real estate properties located in the State of Florida. Dr. Fong and Mr. Quinn are each 50% shareholders of 186 Alberta Ltd. (i) #43, 8205 Sun Spring Circle, Orlando – This property was purchased by the Professional Corporation in 2011 and then transferred to 186 Alberta Ltd. in 2015. It is currently being used as a rental unit. (ii) 3372 RiverView Way, Winter Park – This property was purchased in 2014 with funds borrowed from Dr.

Fong’s Professional Corporation and is currently being used as a rental unit. (iii) 474 Hunter’s Circle, Kissimmee – This property was purchased in 2016 using a US Line of Credit, guaranteed by GIC funds held by Dr. Fong’s Professional Corporation. It is currently being used as a rental unit. [ 25 ] With respect to the properties owned by 186 Alberta Ltd., Dr. Fong submitted that she never intended to gift a 50% interest to Mr. Quinn. Rather, 50% of the shares were transferred to Mr. Quinn in order to compensate him for work completed for these properties but that never occurred. Mr.

Quinn disagreed and argued he should be permitted to keep 50% of the interest in 186 Alberta Ltd. III. Expert Evidence A. Matrimonial Property Distribution in Quebec [ 26 ] The parties’ experts were in general agreement regarding the manner in which property is distributed under the Quebec Civil Code when parties separate or divorce. [ 27 ] First, when parties marry, they become subject to the “Family Patrimony” regime, which applies to all couples who are living in Quebec at the time of their divorce or separation.

Under the rules of Family Patrimony, the value of certain items is shared equally by the parties, subject to certain exceptions and deductions for gifts, inheritance and property owned prior to the marriage. The items that are distributed equally include the family residence and secondary residences (such as recreational properties), furniture and furnishings in such residences, vehicles used for the family, RRSPs, as well as any private or public pension plans.

Parties are not permitted to contract out of Family Patrimony, although a party may waive his or her rights to Family Patrimony at the time of separation or divorce. [ 28 ] Second, once property is divided in accordance with Family Patrimony rules, then any remaining matrimonial property is divided according to the parties’ matrimonial regime. There are two matrimonial regimes relevant for the purposes of this case, given that the parties were married in 1988. The two matrimonial regimes are “Partnership of Acquests” (“Partnership Regime”) or “Separation as to Property” (“Separate Regime”).

Under the Partnership Regime, assets and debts are divided equally, again subject to certain exceptions such as gift, inheritance and property owned prior to marriage. Parties may only opt out of the Partnership Regime by notarial act. Under the Separate Regime, each spouse remains the owner of his or her property, whether acquired before or during the marriage, and remains responsible for their own debts, unless incurred for the family. [ 29 ] The experts also opined on the availability of a compensatory allowance claim. Ms. Jensen, the expert retained by Mr.

Quinn, described a compensatory allowance claim as being a form of unjust enrichment claim. A spouse claiming compensatory allowance is required to demonstrate his or her contribution, the enrichment of the other spouse’s patrimony, the causal relationship and the proportion between the two, a corresponding impoverishment and the absence of a justification for the enrichment.

In deciding whether to exercise its discretion to award a compensatory allowance, a court would also review the parties’ situation as a whole, and consider factors like whether the difference in the circumstances of each party at the end of the marriage is significant and whether any roles played by the parties during the marriage enabled one spouse to amass a substantial patrimony while the other dedicated efforts to care

of children or supporting the spouse’s business. According to Ms. Jensen, had the parties continued to reside in Quebec at the time of separation, Mr. Quinn could have advanced a claim for compensatory allowance. [ 30 ] Ms. O’Hanlon, the expert retained by Dr. Fong, emphasized that historically, claims for compensatory allowance were rarely allowed as Quebec Courts placed a high burden on claimants. When the compensatory allowance was being reviewed by appellate courts, the Family Patrimony rules were enacted to provide a better economic balance to separating spouses. Thus, Ms.

O’Hanlon opined that Quebec Courts are now reluctant to award a compensatory allowance, as they are not inclined to interfere with parties’ freedom to enter into a marriage contract choosing a matrimonial regime. Ms. Jensen disagreed that Quebec Courts are not in favour of awarding compensatory allowance when appropriate, though she agreed that there is a “fairly exacting” criteria that must be met by a claimant. [ 31 ] In the end, because of my conclusion regarding issue (

b) as a whole, it is not necessary for me to consider the availability of a compensatory allowance claim had the parties continued to reside in Quebec and the impact that may have, if any, on the current proceedings. Moreover, the Agreed Statement of Facts provides that there is no unjust enrichment claim currently being advanced. B. Formalities associated with executing the Quebec Agreement [ 32 ] The experts retained by the parties agreed that the Quebec Agreement was validly executed in accordance with the requirements of the Civil Code. [ 33 ] In her expert opinion, Ms.

O’Hanlon wrote: The marriage contract entered into between the parties Mr. Quinn and Ms. Fong on June 29, 1988, before notary Dominique Jetté , is legal and valid. The contract stipulates the desire to be governed by the regime of Separation as to Property, meeting the requirements of art. 485 CCQ. It was established by notarial act, en minute 11 , before Notary Jetté in accordance with art. 440 CCQ. It was registered on July 6, 1988, in accordance with art. 441 CCQ under registry number 88020986 and published in accordance with art. 442 CCQ under inscription number 94-0007956-0070 (see Attachment 1, page 7).

Finally, there is nothing in the contract that is contrary to law or against public order as per art. 431 CCQ. There are no other legal requirements such as obtaining independent legal advice or disclosure of existing assets, although this can be done if the parties so desire. [ 34 ] Ms. Jensen, in the

summary portion of her expert report, wrote: The Marriage Contract in this matter appears to satisfy the requirements as to both form and substance required by Quebec law.

Article 1 of the Marriage Contract would have the effect of establishing the regime of separation as to property as the matrimonial regime governing the parties’ affairs. [ 35 ] Therefore, as already noted, the experts agreed that the Quebec Agreement was validly executed in accordance with the requirements of Quebec Law. IV.

Validity of the Quebec Agreement [ 36 ] I am also satisfied on the evidence before me that the Quebec Agreement was duly executed before a Notary in Quebec and the formalities required for execution in that Province were met. [ 37 ] Both parties testified to meeting with a Notary Public prior to their wedding and signing the Quebec Agreement . Although Mr. Quinn testified that he thought he was signing the marriage certificate, he was also asked during direct examination whether Dr. Fong discussed any specific property she wanted covered by the Quebec Agreement . He testified that Dr.

Fong discussed the family jewelry she would be receiving as wedding presents. He recalled advising Dr. Fong, “what would I want that for?” It is reasonable to infer from this that Mr. Quinn understood they were attending before a Notary to at least address what would happen to wedding gifts received by Dr. Fong in the event of separation or divorce. [ 38 ] Exhibit 1, tab 3 of the record also contained a letter from a Notary Public outlining the different matrimonial regimes in Quebec and the usual practice of a Notary when a couple chooses the Separate Regime.

In particular, this letter states: When the decision is made by the couple, if they choose Separation as to Property , a second appointment will be necessary for the signature of the marriage contract. At this appointment, the notary will explain and read out loud entirely the marriage contract to his clients, who will sign in his presence. [ 39 ] Although Mr. Quinn was not able to recall the details of a first meeting with the Notary, he acknowledged in his testimony that the Notary Public read the Quebec Agreement to him prior to signing. [ 40 ] Finally, I accept Dr. Fong’s testimony that she spoke with Mr.

Quinn about entering a marital contract to make sure that he kept what was his and she kept what was hers. I further accept that they went to see a Notary Public on two separate occasions, the second time being when the Separate Regime was explained while the Quebec Agreement was being reviewed and the parties subsequently signed. [ 41 ] I conclude that the Quebec Agreement was validly executed in accordance with the requirements required by the Province of Quebec and the Civil Code. I am satisfied that the formalities required for a marital contract under the law of Quebec were met.

V. Scope of the Quebec Agreement and Alberta Agreement [42] The second issue I have been asked to determine on a preliminary basis is the scope of the Quebec Agreement and AlbertaAgreement as they pertain to other matrimonial property claims before the Court. Having considered the evidentiary record and the lawin Alberta respecting matrimonial property distribution, I conclude that I am not able to address this issue in the current hearing.

Rather,the scope of the Quebec Agreement and Alberta Agreement relative to the matrimonial property claims before the Court must bereserved for trial of this matter. [43] In Hodgson v Hodgson, 2005 ABCA 13, the Alberta Court of Appeal outlined the steps to be followed relative to matrimonialproperty division under the Property Act (formerly the Matrimonial Property Act). Essentially, the Court addressed the steps that shouldbe taken under

section 7 of the Property Act, and the manner in which the factors outlined in

section 8 of the Property Act should beconsidered.

Section 8(

g) provides that the terms of an oral or written agreement between the spouses be considered, and

section 8(m)provides that the court may consider any fact or circumstance that is relevant. [44] In this case, while the Quebec Agreement was validly executed in accordance with the requirements of Quebec law and wouldapply if the parties still lived in the Province of Quebec, the parties now reside in Alberta and have attorned to this jurisdiction for thepurposes of having their matrimonial property dispute determined. Counsel agreed that the Quebec Agreement does not meet the formalrequirements required by Alberta law, as outlined by sections 37 and 38 of the Property Act.

Therefore, a question arises as to what effector scope may be given to the Quebec Agreement. Dr. Fong asked that I give full effect to the Quebec Agreement, whereas Mr. Quinnasked that I consider it unenforceable, particularly since Mr. Quinn cannot advance a claim for compensatory allowance in Alberta.

Mr.Quinn’s closing argument further presented a number of alternative scenarios for me to consider in the event that I decided to apply theQuebec Agreement, and presented arguments regarding tracing and exemptions notwithstanding that I do not have the benefit of afulsome evidentiary record. [45] Interestingly, both parties referred me to the decision Corbeil v Bebris (1993), (AB CA), 141 AR 215,[1993] AJ No 587 (CA) as being supportive of their positions.

There, the Court of Appeal considered whether a trial judge improperlyignored an agreement addressing property division where the formalities of the Property Act of the time were not complied with. KeransJA for the Court wrote the following at paras 18 and 29: [18] The successful ground involves a third aspect of the matter. Having found that the statutory formalities of execution had not beencomplied with, the judge ignored the property division in the agreement. I do not agree that this is always or necessarily the correctapproach. Sometimes, and for some purposes, the agreement must be considered.

He failed adequately to direct himself about that. I donot say that he should have given effect to the agreement. My sole and simple point is that, as a matter of law, one cannot always andtotally ignore it. ... [29] I prefer a reconciliation based upon a moderated sense of the notion of enforceability. In my view, the judge cannot simply adoptand apply the agreement in the face of non-compliance with the statutory formalities of execution. To do that would be to flout thestatute. But neither does the judge pretend the agreement never happened.

The judge, rather, assesses the impact of the agreement on theparties, as one of the facts in their lives and thus one of the circumstances made relevant by s. 8. That impact may be minimal or it maybe significant. Difficulties may arise in applying that distinction.

It is no reason to obliterate the distinction, because that, too, willpresent difficulties and raise the spectre of unjust results. [46] The Corbeil decision, which was referenced by the Court of Appeal in their later decision of Kuehn v Kuehn, 2012 ABCA 67,leads me to conclude that while the Quebec Agreement is unenforceable because it does not comply with sections 37 and 38 of theProperty Act, it would also be an error to ignore the Quebec Agreement in its entirety, as requested by Mr. Quinn.

Kerans JA made clearthat the impact of any marital agreement on the parties may be minimal or it may be significant, and in my view, determining that impactmay only be made based on a fulsome evidentiary record created during a full trial. I find support for this conclusion in Hill v Ilnicki, (AB KB), [2000] AJ No 1219, being a decision of Paperny J (as she then was), identifying principles from Corbeil.At para 38, Paperny J wrote: The following principles can be gleaned from this decision: 1.

When determining the appropriate distribution of property under the Act, a court must consider a separation agreement even though itdoes not comply with the required statutory formalities outlined in

section 38. 2. The impact of the agreement on the circumstances of the parties is relevant. 3. The parties’ reliance on the agreement is relevant, particularly if property has already passed according to its terms. 4.

A court must be careful not to give too much weight to an agreement given that the object of the legislation, to promote the equaldivision of matrimonial property. [sic in original] However, this object may be subverted where the judge concludes, after taking severalfactors into careful consideration, that an equal distribution would be unjust and inequitable or where the parties have freely andknowingly agreed to an unequal distribution. [47] While I acknowledge that counsel to Dr.

Fong introduced evidence regarding the manner in which the parties arranged theirfinancial affairs during their relationship, I do not have sufficient evidence to consider the impact of the agreement on the circumstancesof the parties, nor do I have evidence to consider the Quebec Agreement in relation to some of the other factors listed in

section 8 of theProperty Act. [48] Furthermore, it would not be appropriate for me to make any findings or determinations based on the limited record before methat might unduly interfere with the trial judge’s ability to address any remaining issues in the matrimonial property dispute following a

full trial. For this reason, I also decline to comment on the scope of the Alberta Agreement. The trial judge must have the flexibility to assess witness credibility, consider the evidence and arrive at findings of fact in order to divide and distribute matrimonial property in the manner that they determine to be just and equitable, as required by the Property Act . [ 49 ] Given the foregoing, in accordance with the authority provided by rule 7.1(

d) of the Alberta Rules of Court , I direct that issue (

b) be determined at trial unless the parties mutually agree to participate in an alternate dispute resolution process or are otherwise able to reach resolution. VI. Concluding Remarks [ 50 ] The parties are directed to discuss the matter of costs and if they are unable to reach an agreement within 7 days of the release of this decision, then counsel may write a letter no longer than 3 pages addressing cost submissions. The letter is to be received by my office no later than 14 days of the release of this decision. Heard on June 14 and 15, 2021. Dated at the City of Edmonton, Alberta on July 20, 2021. L.

Bernette Ho J.C.Q.B.A. Appearances: David Kolinsky for the Plaintiff Tina Huizinga for the Defendant