Burns v Burns, 2023 ABKB 174

Court of King’s Bench of Alberta Citation: Burns v Burns, 2023 ABKB 174 Date: 20230323 Docket: 4801 191932 Registry: Calgary Between: Leanne Jayne Burns Plaintiff (Applicant/Cross Respondent) - and - Robert Brody Burns Defendant (Respondent/Cross-Applicant) _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction [ 1 ] On March 9, 2023, in Family Docket Court, Justice Ashcroft ordered this matter to be heard by way of an urgent special application to deal with (1) sale of the matrimonial home ( Home ) and (2) variation of child and spousal support. As set out below, I order the Home to be sold and do not vary child or spousal support. II. Procedural Background [ 2 ] The parties were married in August 2012 and separated in October 2021. There are two children of the marriage, a son born

in June 2013 and a daughter born in March 2015 ( Children ). [ 3 ] On December 20, 2021, Ms. Burns filed a Statement of Claim for Divorce and Division of Property, the latter of which seeks an equal division of property. Since that was filed, Ms. Burns advises that she claims dissipation and an unequal property division, although she has not amended the Statement of Claim. [ 4 ] On January 6, 2022, Ms. Burns obtained an Emergency Protection Order against Mr. Burns, which was replaced with a Mutual No Contact Order on January 19, 2022. Following that, Ms.

Burns continued to reside in the Home with the Children. [ 5 ] On February 8, 2022, Ms. Burns filed an application seeking an order to prevent Mr. Burns from dissipating matrimonial assets, among other things. Mr. Burns cross-applied also seeking a preservation order, among other things. [ 6 ] On March 3, 2022, Justice Hollins granted an interim without prejudice consent order ( Preservation Order ) but it has never been entered or filed with the court. One version of the Preservation Order was provided by Ms. Burns’ counsel. It provides: 1.

It is acknowledged that the Respondent is claiming that certain Matrimonial Assets are exempt from division, namely:

a) A $100,000.00 down payment for the purchase of the matrimonial home at 28 Sage Bank Road NW, Calgary, Alberta T3J 0RJ;

b) The 2015 Toyota Highlander, currently in possession of the Applicant;

c) The 2017 Toyota Tacoma, currently in possession of the Respondent; and

d) The Respondent’s shareholdings in a company known as Broclamee. 2. The parties agree to exchange their financial disclosure no later than March 20, 2022, including any documentation in the possession of the Respondent relating to the assets for which he is claiming an exemption as outlined above in paragraph 3. Following disclosure, the parties agree to attempt to negotiate a mutually-agreeable division of the Matrimonial Assets. [ 7 ] Another version of the Preservation Order, provided by Mr.

Burns’ counsel has additional items listed in paragraph 3 and an additional sentence in paragraph 4: “Failing any agreement the issues of Division of Matrimonial Property and exemption shall be dealt with by further Court Application”. I will refer to the claimed exemptions (whether characterized as exemptions under

section 7 of the Family Property Act , RSA 2000 c F-4.7 or as something else) in paragraph 3 of both versions of the Preservation Order, and those referenced in Mr.

Burns’ April 14, 2022 filed Counterclaim for Divorce and Division of Family Property, or in his March 14, 2023 filed application, to the extent not already included in the above, as the “ Claimed Exemptions ”. [ 8 ] On March 9, 2022, pursuant to a Family Docket Court Endorsement, Justice Kachur directed ongoing interim child and spousal support, and the issue of the determination of certain bills relating to matrimonial property, to be heard on April 11, 2022. On March 17, 2022, Ms. Burns filed an application to impute income on Mr. Burns and for an interim child support and spousal support order.

On March 30, 2022, Mr. Burns cross-applied seeking to impute income on Ms. Burns, and for an order that she be ordered to pay the utilities and mortgage payments for, and to preserve, the Home pending its sale (the latter of which relief was not contemplated by the Family Docket Court Endorsement). [ 9 ] On April 11, 2022, Justice Johnston granted an interim without prejudice spousal and child support order. As part of the order, the parties were granted leave to

schedule a half-day special application for the issues of child support, spousal support, and property. [ 10 ] On April 13, 2022, Mr. Burns filed a Notice to Attend Family Docket Court seeking a parenting order, a declaration of the Claimed Exemptions, and sale of the Home. [ 11 ] On May 12, 2022, in Family Docket Court, Justice Kenny directed the appointment of counsel for the Children. It is not clear to me whether counsel was ever retained. Justice Kenny also directed the parties to an Early Intervention Case Conference ( EICC ) on July 21, 2022 on the issues of parenting and matrimonial property distribution.

Following the EICC, on July 21, 2022, Justice Dilts granted an Interim Consent Parenting Order providing provisions respecting Mr. Burns’ parenting time. Justice Dilts directed that parenting will be reviewed in mid-September 2022, and she gave the parties leave to book a further EICC on the issue of parenting only. [ 12 ] On July 26, 2022, Mr. Burns filed another Notice to Attend Family Docket Court seeking the sale of the Home “as soon as possible”.

On August 11, 2022, the matter was adjourned by way of a consent Family Docket Court Endorsement on the basis that the parties were working on the terms of a consent order for the sale of the Home. On August 26, 2022, Justice Campbell directed the issue of the sale or refinancing of the Home to morning chambers on September 28, 2022. [ 13 ] On September 2, 2022, Mr. Burns filed another Notice to Attend Family Docket Court, seeking an order regarding his Claimed Exemptions.

Justice Kachur removed this from the Family Docket Court list on September 16, 2022 based on her concerns that this was not a matter that should be dealt with on an interim basis. Mr. Burns’ counsel was not present at that attendance but Ms. Burns’ counsel appeared as his agent. [ 14 ] On October 22, 2022, Justice Malik granted a consent order ( Consent Sale Order ) respecting the Home. The Consent Sale Order provided for the listing of the Home by October 28, 2022.

Each party was entitled to seek to refinance the Home, and if a refinancing occurred both parties were to receive $50,000 from the net proceeds which was to be accounted for in the later division of family assets. The Order further provided that the BMO Home Equity Line of Credit ( HELOC ) and property taxes were to be paid from the proceeds. If neither party was approved for refinancing within 30 days of the order, the parties “will proceed to list” the Home for sale and a process to choose a realtor was set out. Ms.

Burns was to reside at the Home and ensure all utility expenses on the Home remained in good standing pending the sale of the Home. Ultimately, the Home was not listed for sale as contemplated in the Consent Sale Order.

[ 15 ] On February 10, 2023, both parties filed their own Urgent Requests to Bypass Family Docket Court. Ms. Burns referenced the delay in the sale of the Home and asserted that Mr. Burns breached the Consent Sale Order. Mr. Burns raised issues associated with debts, the Home, and his Claimed Exemptions, although it was not clear exactly what relief he was seeking. Justice Kachur denied the request to bypass Family Docket Court, and directed the parties to attempt to resolve matters failing which they could attend Family Docket Court to seek an appropriate process. [ 16 ] On February 16, 2023, Mr.

Burns filed a Notice to Attend Family Docket Court in respect of child support, spousal support, a declaration regarding his Claimed Exemptions, and relief relating to the Home, the mortgage and other debts. [ 17 ] As noted earlier, the parties attended in Family Docket Court on March 9, 2023 before Justice Ashcroft. Counsel provided me a transcript of that attendance, which I have reviewed. After hearing Mr. Burns’ counsel’s submissions that his Claimed Exemptions should be dealt with at the requested urgent special application, Justice Ashcroft did not direct those issues to be part of the urgent application.

She directed an urgent special application to deal only with (1) sale of the Home and (2) variation of child and spousal support. I disagree with Mr. Burns’ counsel’s characterization of Justice Ashcroft’s statements during the March 9, 2023 appearance, or the clear wording of the Family Docket Court Endorsement.

At no time did the Court permit a Claimed Exemptions application to be part of the urgent special application. [ 18 ] Justice Ashcroft’s Endorsement further set deadlines for the filing and serving of disclosure (Items 1-9 from Form FL-17), the application, cross-application, affidavits, response affidavits, and concise letters. [ 19 ] On March 14, 2023, despite Justice Ashcroft’s clear direction and comments as reflected in the transcript, Mr. Burns filed an application seeking a declaration of his Claimed Exemptions.

He did not file an application to vary child support or spousal support that his counsel had represented to the Court he wished to include in the special application. His application was supported by a March 13, 2023 Affidavit (and a later affidavit he filed in response to a Ms. Burns’ affidavit). Mr. Burns did not file his disclosure in accordance with the Family Docket Court Endorsement. [ 20 ] Also on March 14, 2023, Ms.

Burns filed her application (although it was referred to as a cross-application) seeking (1) sale of the Home, with advanced payments of $60,000 to each party and the remainder held in trust; (2) the dispensing of consent of Mr. Burns in respect of the sale of the Home; (3) an order setting the matter down for trial; and (4) an order for contempt against Mr. Burns in respect of the Consent Sale Order. Ms. Burns filed an Affidavit sworn on March 14, 2023. She also filed an affidavit in response to Mr.

Burns’ March 13, 2023 Affidavit, and filed her Item 1-9 financial disclosure on March 14, 2023. [ 21 ] The Family Docket Court Endorsement required concise letters to be filed by March 20, 2023. Ms. Burns filed her concise letter on time. On March 21, 2023, the court advised Mr. Burns’ counsel that his concise letter was rejected and a fiat would be needed and he would have to resubmit the document for filing. Mr. Burns did not obtain a fiat and his concise letter was, therefore, never filed.

The result of all of this was that his unfiled concise letter did not make its way to me until the morning of the application after I specifically inquired about it. It is the responsibility of the parties and their counsel to ensure that they meet filing deadlines or obtain appropriate fiats so that their materials are filed, otherwise they risk their matters being rejected, not heard, or their materials simply not being before the court. In this instance, I was able to review the unfiled concise letter in advance of the application, but the failure to follow court processes and directions caused inefficiencies.

I grant Mr. Burns leave and direct him to file his concise letter so that there is a copy on the court file. III. The Record [ 22 ] The parties agreed that I could refer to documents on the court file, as well as the affidavits they specifically filed in relation to this matter. As noted, I have also been provided and reviewed a transcript of the parties’ attendance before Justice Ashcroft on March 9, 2023, among other materials. [ 23 ] As part of his materials, Mr. Burns included correspondence between the parties which were clearly privileged settlement communications. I noticed that Mr.

Burns’ counsel had marked his correspondence as “Without Prejudice Except as to Costs”, and as a result I did not review this correspondence prior to deciding the merits of this application. Ms.

Burns’ counsel confirmed that she did not consent to settlement discussions being provided. [ 24 ] Parties are reminded that settlement communications are privileged, that settlement privilege can only be waived by both parties, and that it is improper to tender settlement communications to the court without consent of the other party: Bellatrix Exploration Ltd v Penn West Petroleum , 2013 ABCA 10 at para 26 ; Williams v Williams , 2020 ABCA 15 at para 22 .

Even settlement communications marked “Without Prejudice Except as to Costs”, as were some of the correspondence in this matter, are usually in the nature of settlement communications, with the express or implied intention that they will only be provided to the court as part of costs submissions after the decision on the merits: Calderbank v Calderbank , [1975] 3 WLR 586 , 3 All ER 333 (Eng CA) ; Horizon Resource Management Ltd v Blaze Energy Ltd. , 2013 ABCA 139 at paras 91-95 ; Woodbridge Homes Inc v Andrews , 2019 ABQB 968 .

Even if a party expresses an intent to rely on a settlement offer in their costs submissions, it remains a privileged settlement communication, at the very least, until the merits of the matter are decided. Such offers should not be unilaterally tendered to the court as part of submissions on the merits of the matter without the consent of the other party, or without seeking leave of the court. I have not relied on any such communications in making my decision on this application. IV.

Issues [ 25 ] Obtaining a court-directed family chambers special date does not give the parties, or their counsel, licence to expand, add to or ignore the issues directed to be before the court. Parties cannot prioritize their own respective litigation strategies, try to accomplish “as much as possible” before the court by raising additional issues, or to try to avoid issues the court directs to be heard, all in the hope that

the Justice hearing the special application does not notice. Proceeding in this way causes inefficiencies and can cause a degree of litigation chaos for the court and the parties.

Proceeding in an orderly fashion, in accordance with the directions of the court , on special applications is critical and must be respected by the parties. [ 26 ] The need for a focussed and orderly process is even more important when parties have convinced the court that their matter is urgent and should be heard more quickly than it would in the ordinary special application scheduling process. [ 27 ] As I stated in Groch v Groch , 2022 ABKB 840 at para 17 : It is important for the efficient and effective functioning of the Family Docket Court triage system, and procedural fairness, that parties who have a Family Docket Court endorsement do not attempt to expand the issues that have been triaged and directed to further processes by Justices sitting in Family Docket Court.

While attempts to expand issues may be understandable given court-scheduling lead times, they may take the other party and the court by surprise, they will often not have a proper record, and they may undermine the court’s purposes noted above by potentially wasting precious party and court resources on issues that are not before the court and will not be addressed. [ 28 ] A corollary to this is that parties should file the applications they are directed to file pursuant to a Family Docket Court Endorsement or, if they no longer seek to pursue those applications, they should immediately alert the court and the other parties. [ 29 ] In Mr.

Burns’ application, as noted above, rather than seeking a variation of child support or spousal support as was requested by his counsel and permitted by Justice Ashcroft, Mr. Burns applied for a declaration of his Claimed Exemptions which he expressly requested from Justice Ashcroft to be included, but which she did not permit. His application effectively seeks a preliminary determination of an issue, or partial

summary judgment, although it does not comply with the requirements of rules 7.1 or 7.3 (and it may have been unavailable in any event as per rule 12.48). As noted, I disagree with Mr. Burns’ counsel’s characterization of Justice Ashcroft’s words and written direction, which were quite clear. Accordingly, I will not deal with Mr. Burns’ application seeking declarations regarding his Claimed Exemptions, as it has been filed contrary to Justice Ashcroft’s directions and is not properly before me.

Material time was wasted by the parties and the Court sorting out exactly what was properly before the Court. [ 30 ] I note that Ms. Burns also tried to expand upon Justice Ashcroft’s direction and seeks an order for contempt of court and an order setting the matter down for trial. None of this relief was permitted by Justice Ashcroft in the Family Docket Court Endorsement. [ 31 ] Finally, as Mr. Burns chose not to file an application to vary child support or spousal support, even though he was given leave to do so, I do not address that relief either as there is no application before the Court.

If either party wishes to apply for interim relief to vary child support or spousal support, or to impute income, they will have to go back to Family Docket Court for further directions. [ 32 ] Accordingly, the sole issue before me on this application is whether the Home should be sold and, if so, on what terms. V. Analysis A. Should the Home be Sold? [ 33 ] It is within the court’s discretion to order the sale of a jointly owned matrimonial home, where appropriate, pursuant to rule 6.25(1) (

c) of the Alberta Rules of Court , Alta Reg 124/2010 and

section 15 of the Law of Property Act , RSA, 2000: Garnett v Garnett , 2019 ABCA 282 at para 24 .

There is no firm rule on when to do so, as each case must be weighed on its own merits, considering all relevant factors and weighing the costs and benefits to each party in making the order: Garnett at para 24 ; Karagic v Karagic , 2017 ABCA 394 at para 16 . [ 34 ] Factors militating against the sale of the matrimonial home include where there are significant other financial matters still to be resolved, where one of the parties may have sufficient assets to buy out the other’s interest in the home, or where there is no pressing need to sell the home: Wolf v Wolf , 2019 ABQB 200 at para 49 ; Buskas v Reid , 2017 ABQB 454 at para 29 ; Bennett v Stopler , 2003 ABQB 723 at paras 15-17 . [ 35 ] Factors supporting the sale of matrimonial home include situations of urgency, for example where the home is at risk of foreclosure or waste, where the status quo is unsustainable, or where there is no realistic hope that one of the parties can refinance the home to buy out the other party: Garnett ; Karagic ; Gole v Meir , 2021 ABQB 965 at paras 20-22 ; Ubhi v Ubhi , 2022 ABQB 202 at para 15 ; Siversten v Siversten , 2007 ABQB 610 at paras 17-26 ; NLZ v JDV , 2019 ABQB 720 at para 33 . [ 36 ] Further, in some cases, sale of the home may simplify the outstanding financial matters or disputes between the parties and facilitate resolution: Gole at para 22 .

In my view, this is particularly so where there is expected to be a lengthy period between separation and final resolution of matters and there are likely to be complex and difficult occupation rent, dissipation or other arguments on property distribution relating to the ongoing use, maintenance and debt servicing relating to the home: Kuzuchar v Kuzuchar, 2023 ABKB 135 at paras 132-136 ; Vestby v Galloway , 2020 ABQB 361 at para 257 ; IMD v RAD , 2019 ABQB 963 at paras 66-83 ; Martin v Martin , 2019 ABQB 590 at paras 11-27 . [ 37 ] In my view, another factor supporting the sale of a matrimonial home, is the agreement of the parties to sell the home, either outside the court process or, even moreso, as reflected in a consent order that has not been appealed or varied.

As stated by the Alberta Court of Appeal in Cheng v Li , 2015 ABCA 322 , at paras 26-27 , in the context of custody but equally applicable to the sale of a matrimonial home: Moreover, in the case of a consent order the court presumes that when parties are in agreement they usually know what is best for the family, and what is in the best interests of their children. The parties must keep their promises once they are made. If a party has compromised one advantage to achieve another, that party should not lightly be allowed to resile from the bargain freely made :

Hearn v Hearn , at para 31. There are limits to permitting any perceived change to result in a change to a custody order entered into by the consent of the parents. Endless relitigation of custody issues serves the interests of no one, including the children involved.

The utility of settlements respecting custody and access would be considerably diminished if parties could agree to a consent order and then be permitted to resile from it without meeting a considerable threshold test of change in circumstances in the condition, means, needs or circumstances of the child or the ability of a parent to meet the needs of a child which materially affects the child and which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [Emphasis added] [ 38 ] In this case, on balance, I am satisfied that the appropriate step is to order the sale of the Home.

Key factors are addressed below. [ 39 ] There is some urgency. Ms. Burns’ evidence is that she has been advised that foreclosure proceedings are imminent because the mortgage is in arrears. Mr. Burns sought to bring an urgent application in February 2023 in order to save the Home from foreclosure. On March 10, 2023, BMO emailed Mr. Burns’ counsel that the mortgage was in arrears due to non-payment for over 52 days, in the amount of $3,355.35, with another payment due on March 10 for $671.07, but that the mortgage was not in foreclosure status. Mr.

Burns acknowledges the urgency of the situation in his concise letter and in his submissions. His position is that the sale of the Home is not the best way to address the urgency, which I address later in these Reasons. [ 40 ] Both parties appear to be having difficulty maintaining their standard of living, or even making ends meet. They have been accruing significant debt. The BMO HELOC credit limit was increased, which Ms. Burns asserts was done by Mr. Burns in breach of the Preservation Order. It is maxed out and is presently in default – there is some unclear evidence about the minimum payments required.

Further, property taxes and insurance for the Home are unpaid or coming due. The Children attend expensive private school. Ms. Burns’ evidence is that she desperately needs access to funds to meet the needs of herself and the Children. Although Ms. Burns did not provide a recent monthly budget, her disclosure indicates she had Line 150 income of $13,858.79 in 2022. [ 41 ] Mr. Burns’ evidence is that he is currently living out of his car, he has no accessible income, and that his ability to borrow funds from family members has come to an end or may be coming to an end. Ms. Burns provided evidence that Mr.

Burns appears to be residing somewhere when he attends Facetime contact time with the Children. In any event, he stopped making the mortgage payments he was making previously. He says his bank accounts are in overdraft and he has no room in his credit. However, as I have noted, Mr. Burns did not provide his disclosure in accordance with Justice Ashcroft’s March 9, 2023 direction so the Court does not have his full information.

The day before the application, on March 21, 2023, he appears to have sworn a Disclosure Statement (with no attachments) that he expected his income to be $30,000 based on dividends from his investments (it is unclear if these are investments that are subject to his Claimed Exemptions and the Preservation Order, but I expect they are).

Further, he has previously sought sale of the Home, at least as far back as July 2022, on the basis that the mortgage was in arrears. [ 42 ] There appears to be considerable equity in the Home which could be accessed by the parties if the Home is sold, which might alleviate some of their financial pressures. The evidence before me is the Home was appraised in fall 2022 at $708,000 and the mortgage balance was recently approximately $312,895. [ 43 ] Mr.

Burns’ position now is that he wants to live in the Home and that there are other ways to address the urgency of the BMO HELOC, the mortgage, property taxes and insurance for the Home, without selling the Home and incurring sale costs, including real estate commissions or mortgage pre-payment costs. His counsel made a few suggestions how this could be accomplished, which involve allowing him to access substantial funds or assets that he says are available from an exempt inheritance ( Claimed Inheritance Assets ). First, he suggested that he could use these funds to pay Ms.

Burns the value of her equity, assume the mortgage and BMO HELOC, and be responsible for the mortgage and BMO HELOC moving forward. Second, he suggested that the Claimed Inheritance Assets could be used to simply pay out the mortgage and the BMO HELOC, pay the property taxes and insurance, and the parties could keep the Home. He says that the Court would then need to give directions on who would have exclusive possession of the Home and deal with matters like occupation rent moving forward. [ 44 ] Mr. Burns’ proposals are problematic.

With respect to his first proposal, although he has had ample time to do so, he has not put a sufficient evidentiary record before the Court for me to be satisfied on a balance of probabilities that he would be in a position to solely assume the mortgage and have Ms. Burns removed from the mortgage. He has had since at least October 2022 to get something arranged. Further, he has not provided proper financial disclosure since at least March 2022.

Based on his evidence of a lack of income or access to assets, the unresolved family property distribution (including the dispute over his Claimed Exemptions), and unresolved child and spousal support matters, I have significant doubt he would be able to refinance the Home or assume the mortgage as he proposes. Based on the evidence before me, it appears much more likely that he would not be able to do so. A plan to refinance or buy- out another party is not very persuasive if it is conditional upon quickly resolving matters that the parties have not been able to resolve over many months.

Further, in his unfiled concise letter, Mr. Burns acknowledged that the refinancing conditions with BMO were not met (for which he blames Ms. Burns). With the consent of opposing counsel, Mr. Burns’ counsel read a March 16, 2023 email from BMO into the record, but it only said that BMO required the mortgage arrears had to be paid before Ms. Burns could be removed from the mortgage - I am not satisfied it evidenced a commitment by BMO to allow Mr. Burns to assume the mortgage in his own name alone once the mortgage arrears were brought current. [ 45 ] Further, Mr.

Burns’ proposal that in excess of $400,000 of the Claimed Inheritance Assets should be used to simply pay out the mortgage and the BMO HELOC is not persuasive on the record before me. This proposal would require a variation to the consent Preservation Order for which no application has been sought or permitted, and to which Ms. Burns does not consent without having proper disclosure. Further, it would, in effect, potentially involve an interim distribution of family property.

While I have discretion to do that, I must consider the prejudice and benefits of doing so: Wolf at paras 45-46 ; Fleming v Fleming , 2016 ABCA 88 at para 22 . Here, the potential benefit is saving real estate commissions and other costs. Without proper disclosure, I am not satisfied that Mr. Burns’ proposal would not potentially prejudice the parties in their ultimate positions on the family property distribution given the allegations of dissipation and commingling that have been raised. I just don’t have enough information about all of that at this point in time. Further, Mr.

Burns’ proposal would leave the parties with the Home, which would then create further complex potential disputes

about who should reside there, whether that person should pay occupation rent, and who would be responsible for utilities, taxes, insurance, and the like. As noted earlier, these can be complex situations that provide fertile ground for more disputes between parties that appear unable to cooperatively manage their affairs. I am not satisfied that the benefits outweigh the costs in this case. [ 46 ] A significant bar to Mr. Burns’ proposals are that he has previously taken the position with the court and Ms. Burns that the Home should be sold. In July 2022, Mr.

Burns filed a Notice to Attend Docket Court and represented to the Court that he was seeking to sell the Home as soon as possible. After working for a few months on an agreed process respecting the Home, in October 2022, the parties agreed to refinance or sell the Home and entered into the Consent Sale Order, which expressly provided both parties thirty days to refinance the Home, failing which it was to be sold. Mr. Burns had his own appraisal done, and then agreed to rely on the appraisal obtained by the jointly selected appraiser.

The parties have not followed the Consent Sale Order regarding the listing of the Home (which was to take place by October 28, 2022), or with respect to the selection of a realtor (proposals for realtors were to be exchanged in October 2022). It appears that, at one point, Ms. Burns provided an extension of time to the end of 2022 to allow Mr. Burns complete a refinancing. This did not happen and no refinancing has occurred. As late as January 23, 2023, both parties appeared content to sell the Home as they were discussing proposed realtors. Mr.

Burns’ position has since changed and, by at least March 2023, he took the position that it was not in the parties’ interest to sell the Home and he began making proposals designed to keep the Home, some of which I discussed above. [ 47 ] Ms. Burns’ evidence is that she has arranged a new place to reside with the Children, effectively in reliance on the expectation that the Home was to be sold as per the parties’ agreement and the Consent Sale Order.

Her evidence is that she continues to reside at the Home but has been going back and forth between her new residence and the Home as she slowly moves items from the Home to her new premises. In my view, unless Ms. Burns agrees with Mr. Burns’ proposal, it would be unjust and inequitable to allow Mr. Burns’ to resile from his earlier agreement and the Consent Sale Order. I am not satisfied that anything material has changed since the parties reached their agreement or since the Consent Sale Order, and the parties should be held to their bargain. Mr.

Burns’ submission that he has now “re-thought it through” is insufficient. I find that Mr.

Burns was likely aware there would be real estate commissions, mortgage pre-payment costs, and other costs, when he previously sought to sell, and agreed to sell, the Home. [ 48 ] Finally, in my view, the sale of the Home would simplify the current and potential future financial disputes between the parties, retire some significant matrimonial debt, and provide both of them access to some much needed funds in the meantime. [ 49 ] Accordingly, on balance, and considering all relevant factors, I exercise my discretion to order the sale of the Home, the terms of which are discussed below. B.

If the Home is to be Sold, what are the Appropriate Terms of the Court- Ordered Sale? [ 50 ] The parties have already agreed to the terms of the Consent Sale Order that was to govern the sale of the Home. That order should be confirmed, with some variation to reflect the new reality and to decrease the possibility that the sale of the Home can be frustrated. A new order based on the Consent Sale Order is granted, on these terms, which provides the parties a short further time to reach a resolution should they wish: (

a) paragraph 1 of the Consent Sale Order shall be replaced with: Failing an agreement in writing by both parties to the contrary before March 31, 2023, the Home shall be listed for sale by no later than March 31, 2023. Mr. Burns has until March 27, 2023 to choose one of the three realtors previously proposed by Ms. Burns, in which case the parties shall immediately retain that realtor. If Mr. Burns fails to choose one of the realtors by March 27, 2023, then Ms. Burns shall choose the realtor from one of those three. If Mr.

Burns does not execute the listing agreement by March 31, 2023, or such other date as may be agreed to by the parties, his consent to the listing agreement shall be dispensed with; (

b) paragraph 2 shall be replaced with: the Home shall be listed at the price as recommended by the realtor or as otherwise agreed by the parties in writing. The realtor shall be provided copies of the previous appraisals of the Home in the parties’ possession, and the realtor may conduct his or her own comparative market analysis. The parties shall follow the recommendation of the realtor for cleaning the Home for sale, shall consent to and cooperate in such cleaning, and shall jointly share those costs.

If the parties agree to any repairs as recommended by the realtor, they will share those costs (without prejudice to the parties’ positions as to how or whether those costs should be treated in a final property distribution); (

c) paragraphs 3-4 and 15 of the Consent Sale Order are deleted; (

d) paragraph 7 of the Consent Sale Order shall be amended to provide that the parties shall retain a third-party real estate lawyer to complete the real estate transaction. Ms. Burns shall propose three lawyers to Mr. Burns by March 31, 2023, and Mr. Burns shall select one by April 7, 2023. That lawyer shall be retained by the parties jointly. If Mr. Burns fails to select one of the lawyers, Ms. Burns is entitled to retain the real estate lawyer of her choosing, of those she proposed, without the consent of Mr. Burns.

The parties shall share the cost of the real estate lawyer in either case, who may be paid out of the proceeds of sale. Paragraph 8 of the Consent Sale Order shall be amended to replace Llewellyn Law with the third-party real estate lawyer as retained pursuant to the terms of this order; (

e) paragraph 9 of the Consent Sale Order shall be amended to state that the parties shall be jointly responsible for the mortgage payments, utilities, property taxes, and insurance. Any outstanding amounts for these items shall be paid out of the proceeds of sale. All of this is without prejudice to the parties’ positions as to how or whether these payments or costs should be accounted for in any final property distribution; (

f) paragraph 16 of the Consent Sale Order shall be varied to provide that both parties will cooperate with the realtor and allow access to the Home to the realtor and any prospective purchaser for the purposes of viewing the property between 8:00 a.m. and 8:00 p.m.;

(

g) paragraph 19 of the Consent Sale Order is amended to replace the second sentence with: The parties shall accept any offer within 3% list price, on such reasonable terms as recommended by the realtor; (

h) paragraph 24 of the Consent Sale Order shall be amended to remove the reference to refinancing; and (

i) paragraph 25 of the Consent Sale Order shall be amended to add a sentence that the parties shall be jointly responsible to ensure the Home remains insured pending sale, and the cost of this shall be shared equally. [ 51 ] The parties agreed that, if I ordered the sale of the Home, the mortgage arrears, mortgage payments, BMO HELOC payments, insurance payments and property taxes should be paid out of the Claimed Inheritance Assets accounts on a without prejudice basis.

Accordingly, the Preservation Order is varied to allow the parties to access the Claimed Inheritance Assets for the sole purpose of paying the mortgage arrears, property taxes, and then making mortgage payments, BMO HELOC payments, insurance payments and property tax payments pending sale, in the minimum amount so as to preserve the Home pending sale, and all without prejudice to the parties’ respective positions as to how those payments should be accounted for in the final family property distribution. These amounts from the Claimed Inheritance Assets shall be paid into Ms.

Burns’ counsel’s trust account in increments agreed by the parties, and then Ms. Burns counsel shall make the payments. [ 52 ] Ms. Burns suggested that Mr. Burns’ “consent, signature and assistance with the sale of the Home be dispensed with”. Given that Ms. Burns also did not follow the terms of the Consent Sale Order and waited until February 2023 to seek to enforce the sale of the Home, I am not prepared to amend the Consent Sale Order except as described above to facilitate the sale.

The parties are urged to cooperate in the sale of the Home and not find ways to frustrate the clear intent of the this decision.

However, in the event the parties require the court’s assistance to effect the sale of the Home as per the terms of my order, they have leave to bypass Family Docket Court, for that purpose only , and file an application in family chambers returnable on 5 days’ notice. [ 53 ] Finally, the parties agreed before me that, if I ordered the sale of the Home, an additional $25,000 should be paid to each party from the Claimed Inheritance Assets accounts, to assist each party with their current financial situation. Based on that agreement, I vary the Preservation Order and direct Mr.

Burns to cause $50,000 from the Claimed Inheritance Assets to be paid to Ms. Burns’ counsel, in trust, who in turn is directed to pay each party $25,000. This direction and these payments are without prejudice to each parties’ position in the final property distribution. C.

If the Home is Sold, Should the Court Order an Interim Distribution of Funds out of the Sale Proceeds? [ 54 ] As noted, courts have discretion to grant an interim distribution of matrimonial funds, including from the sale of a matrimonial home, upon considering the prejudice and benefits of doing so: Wolf at paras 45-46 ; Fleming at para 22 . [ 55 ] The parties already balanced the pros and cons of an interim distribution from the sale or refinancing of the Home in the Consent Sale Order, and provided that the parties would each be entitled to $50,000 paid out of the net proceeds of sale of the Home.

Before me, they both agreed that if I order the sale of the Home, an interim amount of $65,000 payable to each party is acceptable and appropriate. Accordingly, paragraph 8 of the Consent Sale Order is amended to provide that each party shall receive $65,000 from the net proceeds of the sale of the Home. VI. Conclusion [ 56 ] Mr. Burns’ application in respect of his Claimed Exemptions is dismissed as not being properly before the Court. [ 57 ] Ms. Burns’ application for the sale of the Home is granted as per these Reasons and on the terms given above.

Her application respecting contempt of court and setting the matter for trial are both dismissed as not being properly before the Court. [ 58 ] The parties need to proceed to trial expeditiously to finalize child support, spousal support and their family property distribution, including the Claimed Exemptions. Both parties agreed that a pre-trial conference would be appropriate. I agree. I exercise my discretion and direct, and if necessary, grant leave to the parties to

schedule and attend a pre-trial conference as soon as possible for the purposes of setting the matter down for trial. In addition to their Family Pre-Trial Conference

Summary (Form QB028), I order both parties to file and serve updated disclosure items 1-16 (Form FL-17) at least two weeks before the scheduled pre-trial conference date. Further, I order the parties to attempt to agree on the terms of a litigation plan or procedural order that contemplates all steps to get the matter to trial, or failing agreement, to provide their respective proposed litigation plans or procedural orders to the Court with their Family Pre-Trial Conference

Summary. [ 59 ] For clarity, and if necessary, I vary Justice Johnston’s April 11, 2022 order to delete paragraph 3 of that order. If either party seeks interim relief pending trial, they will have to go back to Family Docket Court for an appropriate process (except as otherwise provided for in these Reasons). [ 60 ] Finally, the failure of the parties to ensure that Justice Hollins’ March 3, 2022 order was finalized and entered caused unnecessary inefficiency and complexity to this application.

The parties are directed, and have leave, pursuant to rule 9.5, to proceed to get that order finalized with Justice Hollins and entered. The parties should not have let this linger unresolved for almost a year. [ 61 ]

VII. Costs [ 62 ] If, within 30 days of these reasons, the parties cannot agree on entitlement to, or quantum of, costs, or whether some or all of the costs should be paid by counsel personally in this matter pursuant to rule 10.50, they may make written submissions to me on costs not exceeding 5 pages (excluding cases). If either party believes further evidence or argument is required beyond this, they may advise me of their position in their written submissions. Heard on the 22 nd day of March, 2023. Dated at the City of Calgary, Alberta this 23 rd day of March, 2023. M.A. Marion J.C.K.B.A.

Appearances: Amanda Ovaici and Shannon Dinh for the Plaintiff Clive Llewellyn and Aryan Sadat for the Defendant