Rutter v Rutter, 2024 ABCA 11

In the Court of Appeal of Alberta Citation: Rutter v Rutter, 2024 ABCA 11 Date: 20240111 Docket: 2303-0123AC Registry: Edmonton Between: Glenda Marleen Rutter Respondent (Plaintiff) - and – Todd James Rutter Appellant (Defendant) _______________________________________________________ The Court: The Honourable Justice Jack Watson The Honourable Justice Kevin Feehan The Honourable Justice Alice Woolley _______________________________________________________ Memorandum of Judgment Appeal from the Order by

The Honourable Justice P.B. Michalyshyn Dated the 23rd day of May, 2023 Filed on the 22nd day of June, 2023 (Docket: 4803 198863) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The appellant husband challenges an interim spousal support order, made in morning chambers on May 23, 2023, in the amount of $5000 per month payable by the appellant to the respondent wife. The parties had been together for 27 years and were married for 24 years, until separating in June of 2022.

They had two children, ages 21 and 19, the younger one living with the respondent. [ 2 ] The respondent, a former nurse, was receiving a monthly stipend of $2,200 through the workers’ compensation system due to the sequelae of a Covid infection. From no later than September of 2022, the appellant was said to be paying $1500 in spousal support to the respondent. She resides in the mortgage free matrimonial home. The appellant was also contributing $944 per month for a vehicle in the possession of the respondent and $75 per month for a cell phone.

He would also include her “banked sick” hours paid by her former employer AHC, but they ran out in May of 2023, so they do not count. Accordingly, the appellant’s position would be that her monthly revenue, including his contributions, was $4,719. [ 3 ] The appellant is a businessman who operates what appears to be a successful specialty tire business. His annual income was in some dispute.

The respondent suggested that business records (not including the appellant’s most recent 2022 tax information) put his share of a corporate wage expense of $385,000 in the records at $180,000 annually, and that his real income was potentially as high as $240,000 having regard to miscellaneous expenses covered by the company, which she asserted amounted to $61,296.70 for the year 2022. No finding has, of course, been made on her submission.

The appellant contends for a much lower figure net to him. [ 4 ] We are satisfied that, even acknowledging the existence of dispute, there was a basis on the information provided to the chambers judge for him to conclude that the appellant’s financial position was more likely in the range suggested by the respondent. On a $240,000 calculus, the midrange of the Spousal Support Advisory Guidelines amount payable by the appellant would have been $6,837.00 per month.

Plainly the chambers judge considered the limitations of the proceedings before him in reaching the conclusion that he did, namely an interim support level of $5,000 per month, thus raising her revenue level in total to $7,200 per month. No one discussed the tax implications of this outcome for either party. [ 5 ] As the chambers judge observed, the ‘morning chambers’ for family law cases is not, given the time constraints and often limited financial and other disclosure common in the early stages of litigation, “an elegant place to litigate”.

Rough justice – to use the chambers judge’s phrase – is frequently the result. Imperfect as it often is, such a decision is intended to create a temporary remedy and not a permanent solution. The practical effect also is to encourage litigants to move towards a stable conclusion of the litigation process. [ 6 ] We note that since the decision under appeal the Alberta Rules of Court , AR 124/2010 ,

Part 8, Division 5, have been amended to provide for a ‘streamlined trial’ system which is available in family law cases under Rule 12.49, and which is centred on proportionality. The Court of King’s Bench may choose now to designate this case for such a streamlined trial. The chambers judge did not have that option available to him and made an order that was an “interim without prejudice and pre-disclosure order” that could all “be revisited”.

He also directed that the question of retroactive support was ‘reserved’. [ 7 ] At the time of the impugned decision, the chambers judge’s so-called ‘morning chambers’ list was not finished, and it was already 12:40 pm. The appellant opened with a request for an adjournment of the respondent’s motion. The adjournment was to defer the respondent’s application for spousal support “until such time as Ms. Rutter has complied with her disclosure obligations and has attended for questioning”. The appellant refused a process of written interrogatories.

The grant of such an adjournment would, in effect, have amounted to a decision to leave the question of how much spousal support should be paid to the respondent in the discretion of the appellant sine die . The chambers judge denied the adjournment saying, “I am not satisfied yet that I should stop her in her tracks today”. [ 8 ] The appellant’s submission on the adjournment merits was largely based on a “Family Docket Court Endorsement” from the King’s Bench dated April 19, 2023. That Endorsement set out what was said to be outstanding in terms of disclosure by the respondent.

In our respectful view, nothing in the list of alleged disclosure shortfalls by the respondent disclose any error on the decision of the chambers judge to deny the adjournment or to make a stop-gap decision. The appellant’s skepticism about the health situation of the respondent and its effect on her ability to go through questioning does not change that. [ 9 ] The matter of principle argued for the appellant is that while rough justice may be mandatory under the stresses of time and

judicial limitations, even a decision delivering rough justice must address the functions of intelligibility and reviewability of reasonsnecessary either for party understanding and for meaningful appellate review: R v M(RE), 2008 SCC 51 at para 11, [2008] 3 SCR 3.Relatedly, the decision must serve the accountability function for reasons, whereby the justice system itself is validated. In sum, theappellant says the reasons given, even in the context of the materials filed, do not illuminate how the decision was reached. [10] In our view, for the

interpretation of chambers decisions, the rationale for the decision may be sufficiently decipherable asmuch by review of the record, including documents and the contents of the submissions, even if the chambers judge does not rehearseeither the documents or the oral submissions. The chambers judge took a step-by-step approach in giving his reasons for decision. [11] First, he explained that he was satisfied that an order should be made that could be “revisited”.

Second, he recognized thatthere were “other things that counsel and their clients may need to do, including this question of whether meaningful questioning cantake place of both the parties” but that should not impede an order. Third, he decided to make “an interim without prejudice and pre-disclosure order for spousal support of $5,000 a month. Costs in the cause.” Fourth, he reserved on the issue of retroactive child andspousal support. [12] Finally, the order taken out to reflect his decision started the support at the first of the month after May 23, 2023, which waswhen the banked sick leave had run out.

That order added: “Either party may apply to vary this Order at any time. Neither party shallneed to show a change in circumstances to make such application.” [13] The appellant contends that even under the pressing circumstances faced by the chambers judge, the explanation given by thejudge, particularly given the incomplete financial disclosure as to the respondent’s “condition, means, needs, and other circumstances”and the contradictory evidence on the appellant’s income level, fell short of the functions of reasons.

In his submission, what she is nowto receive exceeds what she needs to cope and that better reasons are required to explain that discrepancy. We are satisfied that, taken as awhole, the record reveals a rationale for the conclusion reached by the chambers judge that meets the three purposes of reasons. [14] In our view, this case runs aground on the shoals of standard of review. An interim order made in chambers is entitled todeference. Interim orders are necessarily made on a less than perfect record. It is a band-aid, not surgery: Pinter v Pinter, 2016 ABCA 58at para 33, [2016] AJ No 209 (QL).

All interim orders are subject to review and adjustment at trial, on a retroactive basis if necessary:Davies v Davies, 2015 ABCA 17 at para 5, [2015] AJ No 35 (QL), citing MacMinn v MacMinn (1995), (AB CA),174 AR 261; Hartley v Del Pero, 2010 ABCA 182 at para 9, 487 AR 248. [15] This court has repeatedly urged parties to “not waste finite time and money appealing interim orders – time and money betterspent achieving an equitable settlement, or getting a final determination at trial of all matters in issue”: Anand v Anand, 2016 ABCA 23at para 67, 609 AR 359, citing Hartley v Del Pero, 2010 ABCA 182 at para 27, 487 AR 248, Zaboschuk v Zaboshuk, 2012 ABCA 172at para 5, [2012] AJ No 575 (QL), Davies v Davies, 2015 ABCA 17 at para 6, [2015] AJ No 35 (QL), FJN v JK, 2015 ABCA 353 atpara 6, [2015] AJ No 1237 (QL). [16] The chambers judge understood this litigation was in its infancy.

Disclosure and questioning were not complete. This was thefirst application for interim spousal support. The respondent had not returned to work as a nurse since contracting Covid in 2020. Herline 150 income for 2022 was $52,000 based on WCB payments of $2200/month and uncharacterized payments to her from the appellantof $1500/month.

The appellant’s business reported more than $3,000,000 in revenue for 2022, albeit with the extent of revenue flowingto the appellant being a matter of major controversy. [17] An appeal court will intervene only when there is a material error, a serious misapprehension of the evidence, or an error inlaw; it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factorsdifferently.

We detect no error justifying appellate review. [18] Although the evidence before the chambers judge was neither complete nor uncontested, there was sufficient evidence tomake the order that he did, which is a determination that is entitled to deference. The appellant is at liberty to revisit spousal support asdisclosure and questioning are completed and the financial picture becomes clearer.

We agree with the sentiment expressed in Davies, atpara 6: “the solution in cases like this is to complete disclosure and set the matter down for trial without delay, not to launch appealsfrom interlocutory orders". [19] The appeal is dismissed. In concluding, we note that prior to the appeal being heard, counsel for the appellant was instructedto provide a brief explaining how the amount at stake would exceeding the $25,000 limit in Rule 14.5(1)(

g) requiring permission toappeal. While we have doubts about whether the real quantum on this appeal from an interim order should be taken to surpass the rulelimit, we conclude that it is unnecessary to address that point. We would, however, remind counsel that meeting that limit should beconsidered. Appeal heard on January 8, 2024 Memorandum filed at Edmonton, Alberta this 11th day of January, 2024

Watson J.A. Feehan J.A. Woolley J.A. Appearances: N. Sidhu for the Respondent R. Ghanem (appeared on behalf of O. Abdulhak) for the Appellant