Coble v Atkin, 2023 ABKB 10

Court of King’s Bench of Alberta Citation: Coble v Atkin, 2023 ABKB 10 Date: 20230106 Docket: 4803 186112 Registry: Edmonton Between: Tara Coble Plaintiff/Defendant by Counterclaim - and - Christopher Atkin Defendant/Plaintiff by Counterclaim _______________________________________________________ Reasons for Decision of the Honourable Justice Kevin Feth _______________________________________________________ Overview [ 1 ] Tara Coble commenced an action against her husband, Christopher Atkin, seeking a divorce and the division of matrimonial property. Mr.

Atkin filed a Statement of Defence and a Counterclaim asking for the same relief. A few months later, he passed away. [ 2 ] More than three years passed without a formal litigation step being taken in the action. [ 3 ] During those three years, Mr. Atkin’s sister, Kristina Atkin, took control of his Estate. A grant of administration named her as his personal representative to administer the Estate. [ 4 ] Ms.

Coble applies to dismiss the Counterclaim, either for long delay, relying on the three year “drop dead” Rule, or alternatively, for delay resulting in significant prejudice: Rules 4.33 and 4.31, respectively, of the Alberta Rules of Court , Alta Reg 124/2010 . The Estate opposes her application. [ 5 ] The Estate cross-applies to amend the style of cause to substitute the personal representative of the Estate as the Defendant

and Plaintiff by Counterclaim. The Estate also seeks an Order directing Ms. Coble to pay the Estate the value of a Locked-in Retirement Account (LIRA) and a related cash payment of $5,400 she received following Mr. Atkin’s death as his surviving spouse. [ 6 ] For the reasons to follow, Ms. Coble’s application is dismissed. The Counterclaim was significantly advanced during the relevant time period preceding the application. No significant prejudice has been demonstrated. [ 7 ] As for the cross-application, the request to substitute the Estate for Mr. Atkin as a party is granted.

I direct that “The Estate of Christopher Atkin” be substituted as the Defendant and Plaintiff by Counterclaim. The application to compel Ms. Coble to pay the Estate the value of the LIRA and the cash payment is dismissed. Issues [ 8 ] The application and the cross-application raise the following issues:

a) Did Mr. Atkin and his Estate fail to significantly advance the action, including the Counterclaim, for more than three years?

b) Was Ms. Coble significantly prejudiced by the delay such that the Counterclaim should be dismissed?

c) If the Counterclaim is not dismissed, should a remedial procedural order be granted?

d) Should the Estate be substituted for Mr. Atkin as a party in this action?

e) Should Ms. Coble be directed to pay the Estate the value of the LIRA and the cash payment? [ 9 ] Before turning to the allegations of long delay and prejudice, some context is required. Background [ 10 ] Ms. Coble and Mr. Atkin were married in 2016 and separated a year later. In January 2019, Ms. Coble commenced this action by filing a Statement of Claim for Divorce and Division of Matrimonial Property. She also filed a Notice to Disclose. [ 11 ] Mr. Atkin responded promptly by filing a Statement of Defence and a Counterclaim for Divorce and Division of Matrimonial Property.

He also filed a Notice to Disclose. [ 12 ] By March 22, 2019, the parties had provided sufficient disclosure such that their mutual applications for disclosure were adjourned sine die . [ 13 ] In May 2019, the Canadian Imperial Bank of Commerce (CIBC) commenced a foreclosure proceeding against the parties regarding the matrimonial home. [ 14 ] On October 20, 2019, Mr. Atkin died. [ 15 ] In November 2019, Mr. Atkin’s sister, Kristina Atkin, corresponded with Ms. Coble’s counsel and made representations implying that she would be taking responsibility for administering Mr.

Atkin’s Estate. [ 16 ] On January 9, 2020, Ms. Atkin sent to Ms. Coble an Application for Grant of Administration which included Mr. Atkin’s NC7 – Inventory of Property and Debts valued as of the date of his death. [ 17 ] In May 2020, the Estate’s lawyer informed Ms. Coble’s lawyer that the Estate could not access the LIRA because the funds “passed automatically” to Ms. Coble on Mr. Atkin’s death. [ 18 ] On May 25, 2020, this Court issued a Grant of Administration appointing Kristina Atkin as the administratrix of Mr. Atkin’s Estate. [ 19 ] On June 2, 2020, Ms.

Coble made a consumer proposal in accordance with the Bankruptcy and Insolvency Act , RSC 1985, c B-3 , which was accepted by her creditors in September 2020. [ 20 ] In April 2021, Ms. Coble’s lawyer informed the Estate that Ms. Coble had received Mr. Atkin’s $50,000 LIRA and a cash payment of $5,400 related to the LIRA. [ 21 ] On June 20, 2021, a Consent Order for Deficiency Judgment in favour of the CIBC was granted in the foreclosure proceeding.

The deficiency judgment was for $88,316.15 plus solicitor/client costs calculated as $8,378.25. [ 22 ] In the Fall 2021, the Estate provided an informal update of its financial information to Ms. Coble. [ 23 ] On January 12, 2022, Ms. Coble provided an informal update of her financial information to the Estate. [ 24 ] On June 10, 2022, Ms. Coble filed a Notice to Attend Family Docket Court seeking permission to bring her application to dismiss the Counterclaim. [ 25 ] On September 16, 2022, Ms. Coble filed her Family Application to dismiss the Counterclaim for long delay or prejudicial delay.

[ 26 ] The Matrimonial Property Act, RSA 2000, c M-8 ( MPA ) applies to Ms. Coble and Mr. Atkin, rather than the Family Property Act , RSA 2000, c F-4.7 ( FPA ), because they were living separate and apart immediately before January 1, 2020: FPA at s 39(2). The Counterclaim was significantly advanced within the time limit under Rule 4.33 [ 27 ] Rule 4.33 prescribes that if three or more years have passed without a “significant advance” in an action, the Court, on application, “must dismiss the action as against the applicant” unless certain exceptions apply.

The exceptions are not engaged here. [ 28 ] Due to the COVID-19 pandemic, Ministerial Order 27/2020 suspended the operation of the time limits under the Rules of Court from March 17, 2020 to June 1, 2020, subject to the discretion of the Court. Ms. Coble did not argue that I should exercise my discretion to disregard or reduce the suspension period. As a consequence, the time period during which the Counterclaim had to be significantly advanced was extended by 75 days. [ 29 ] The operation of Rule 4.33 is mandatory, although a party must apply to the Court to trigger the dismissal.

No inquiry into prejudice is required: Alberta v Morasch , 2000 ABCA 24 at para 5 . [ 30 ] The time period under Rule 4.33 (in this case, 3 years and 75 days) is calculated by looking back from the date the application for dismissal was filed, not heard: Flock v Flock Estate , 2017 ABCA 67 at para 17 (8).

a) The filing date [ 31 ] The parties disagree about the filing date of the application. The Estate contends that the relevant date is when Ms. Coble filed a Notice to Attend Family Docket Court on June 10, 2022 through which she sought permission to

schedule a hearing date for the Application. Ms. Coble submits that the relevant date is when the Family Application was filed on September 16, 2022, formally particularizing the Application. [ 32 ] The Court implemented the Family Docket Court process effective May 13, 2020. All family matters must be heard first in Family Docket Court before any other court process can be scheduled unless an order is granted to bypass Docket Court.

An appearance in Family Docket Court is therefore a necessary step. [ 33 ] The Notice to Attend Family Docket Court informs the opposing party about the nature of the application to be scheduled, although without the particulars of the application. For an application to dismiss for long delay (or prejudicial delay), the Notice to Attend adequately notifies the opposing party that the operation of Rule 4.33 (or Rule 4.31) is being triggered and that long delay (or prejudicial delay) must be determined. [ 34 ] The time after filing the Notice to Attend is institutional delay.

The delay caused by the Court’s process generally should not be taken into account: Kehew Construction Ltd v Kehewin Cree Nation , 2017 ABQB 763 at para 7 . [ 35 ] Moreover, this approach to calculating the time prevents a dilatory litigant from unilaterally taking a step after the Notice to Attend is filed but before the Family Application reaches the Court.

The Alberta Court of Appeal cautioned against such a “foot race to the courthouse” long before the creation of the Family Docket Court process because the Rule’s purpose to encourage expeditious litigation would be undermined: T rout Lake Store Inc v Canadian Imperial Bank of Commerce , 2003 ABCA 259 at paras 26 , 31. [ 36 ] I therefore conclude that for the purposes of these Rules, the Family Application is “filed” on the filing date of the Notice to Attend Family Docket Court where that date precedes the filing of the Family Application. [ 37 ] The time period of 3 years and 75 days therefore started on March 27, 2019.

b) No “significant advance” [ 38 ] A “significant advance” moves the lawsuit forward “in an essential way considering its nature, value, importance and quality” and the “genuineness and timing of the advance.” The focus is on “substance and effect, not form”: Ursa Ventures Ltd v Edmonton (City) , 2016 ABCA 135 at para 19 ; Weaver v Cherniawsky , 2016 ABCA 152 at para 18 [ Weaver ]; Brost v Kusler , 2016 ABCA 363 at para 15 . [ 39 ] Under this functional approach, a significant advance is best characterized as a step providing “meaningful” progress: Phillips v Sowan , 2007 ABCA 101 at para 5 .

The step must move the parties closer to resolution: Weaver at para 26 . [ 40 ] The Estate submits the Counterclaim was significantly advanced during the 3 years and 75 days preceding June 10, 2022 in the following ways:

a) A Grant of Administration was issued, which permitted Kristina Atkin to take conduct of Mr. Atkin’s position in the action;

b) Material information was exchanged about the value of matrimonial property;

c) A judgment obtained in the foreclosure proceeding crystallized the full and specific amount of the parties’ debts related to the matrimonial home; and

d) Ms. Coble provided the Estate with her consumer proposal, which supplied updated information about her assets and liabilities.

[ 41 ] I will address each of the alleged advances in turn.

i) Obtaining a Grant of Administration [ 42 ] When Mr.

Atkin passed away, Rule 4.34(1) was engaged: 4.34(1) If at any time in an action prior to judgment the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the action is stayed until an order to continue the action by or against the other person has been obtained. [ emphasis added ] [ 43 ] The effect of Rule 4.34 was to automatically stay the action pending an order allowing it to continue. [ 44 ] Under Rule 4.33(2)(a), the Court must dismiss the action for long delay unless “the action has been stayed or adjourned by order...”: Rule 4.33(2)(a).

However, the automatic stay under Rule 4.34 is not within the scope of subrule 4.33(2)(

a) and does not extend the time period under review for long delay: Willard v Compton Petroleum Corporation , 2015 ABQB 766 at para 38 ; Stackard v Harrington , 2016 ABQB 357 at paras 20-22 ; Kametani v Holman , 2018 ABQB 18 at para 32 ; Edinburgh Tower Development Ltd v Curtis , 2021 ABQB 239 at para 9 . [ 45 ] That leaves unresolved whether taking steps to lift the stay might significantly advance the action. [ 46 ] Pursuant to s 16 of the MPA , where a person dies after commencing an action for the division of matrimonial property, “the action may be continued by the estate of the deceased person, and ... the rights conferred on that person ... prior to that person’s death survive that person’s death for the benefit of that person’s estate.” [ 47 ] Mr.

Atkin died without leaving a Will. The Estate did not have a personal representative authorized to act for its interest until Kristina Atkin was appointed as the Administratrix under the Grant of Administration on May 25, 2020.

The grant empowered her to seek an order to continue the Counterclaim and lift the stay. [ 48 ] An advance in a “closely related” proceeding that is “inextricably linked” may significantly advance the action: Calgary (City of) v Chisan , 2000 ABCA 313 at para 3 ; 994552 NWT Ltd v Bowers , 2019 ABQB 195 at para 72 . [ 49 ] I conclude that obtaining the Grant of Administration was a necessary and meaningful step before the action could continue. The Grant allowed the personal representative of Mr.

Atkin’s Estate to collect and disclose information on behalf of the Estate, engage in settlement negotiations, and bring an application to continue the action. [ 50 ] In this case, the appointment of the Administratrix was not an instance of form over substance. Following the appointment, Ms. Atkin, through her lawyer, actively engaged with Ms. Coble to exchange information about matrimonial property and liabilities.

Settlement negotiations also occurred. [ 51 ] Counsel for the Estate fairly conceded that a common practice among estate lawyers is to conduct the litigation after death without the formality of obtaining an order to continue the action. However, the requirement exists in the Rules of Court and could be enforced if the surviving litigant demanded compliance. Until then, a stay was operative. [ 52 ] I conclude that obtaining the Grant of Administration was in substance and effect a meaningful step and therefore a significant advance in the action after March 27, 2019.

The “drop dead” application fails on that basis alone. ii) Exchanging financial disclosure [ 53 ] The Estate and Ms. Coble disclosed information about the parties’ assets and liabilities on multiple occasions after March 27, 2019. [ 54 ] First, in January 2020, the Estate (through Kristina Atkin) provided Ms. Coble with the application for a Grant of Administration, which included a NC7 – Inventory of Assets and Liabilities. This inventory identified assets and liabilities that were previously unknown to Ms. Coble because some of them did not exist prior to March 27, 2019 (e.g.

Canada Pension Plan death benefit, funeral expenses, Workers’ Compensation payout for funeral expenses). [ 55 ] Second, in April 2021, Ms. Coble informed the Estate that she had control of Mr. Atkin’s LIRA because of his death. The LIRA was previously controlled by Mr. Atkin who had designated someone other than Ms. Coble to be the LIRA’s beneficiary. Ms. Coble acknowledges that she would have no claim to these funds but for Mr. Atkin’s death. She also received a cash payment of $5,400 related to the LIRA. [ 56 ] Third, in September 2021, Ms.

Coble’s lawyer requested an update of the Estate’s assets and debts as the previous information “included uncertainties as to the Estate’s tax liability and the settlement proceeds from other litigation.” He also asked for an update as to whether the Estate was bankrupt or would be declaring bankruptcy. [ 57 ] The Estate’s lawyer responded in October 2021 by disclosing the sole remaining asset of the Estate was $65,270.45 in cash, calculated as of that month.

The debts set out in the NC7 Inventory for the Grant of Administration were updated and amended to confirm the following: funeral expenses were paid; tax returns were filed; and outstanding taxes were paid. The amount of the deficiency judgment arising from the foreclosure of the matrimonial home was also communicated, including the specific amount for solicitor/client costs. [ 58 ] Fourth, in October 2021, the Estate’s lawyer requested a current list of Ms. Coble’s assets, debts, and claimed exemptions as she had “not found anything that is recent.” In January 2022, Ms.

Coble’s lawyer provided to the Estate his client’s updated list of exemption claims totalling $30,000 and some related background. Before me, Ms. Coble’s lawyer argued that the specific values of the

exemptions were previously communicated to Mr. Atkin’s counsel in March 2019.

However, the record contains no clarity about the exemptions information communicated in 2019, nor specificity about that information being communicated before March 27, 2019. [ 59 ] Materially responding to a Notice to Disclose in family litigation usually constitutes a significant advance: Arbeau v Schulz , 2018 ABQB 941 at para 96 [ Arbeau QB ], affirmed 2019 ABCA 204 [ Arbeau CA ]; Kapicki v Kapicki , 2010 ABQB 615 at paras 8-13 ; Repas v Repas , 2010 ABQB 569 at paras 37-40 . [ 60 ] Updated information, even reflecting no change in asset value, can be new and material if it significantly clarifies the issues between the parties: Arbeau QB at para 46 .

However, information that is perfunctory generally fails to significantly advance the action: Altex International Heat Exchange Ltd v Foster Wheeler Limited , 2018 ABQB 620 at paras 109-110 ; Arbeau QB at para 94 . [ 61 ] Under the MPA , matrimonial property is determined, valued and distributed as of the date of trial: Hodgson v Hodgson , 2005 ABCA 13 at paras 19-21 .

Consequently, updated financial information that confirms and clarifies even the static value of assets and liabilities can significantly advance the action as the proceeding moves towards trial, depending on the circumstances. [ 62 ] Here, the exchange of information about asset valuations, cash holdings, current liabilities, and exemption claims clarified the issues between the parties in a material way. Figures were updated and outstanding issues simplified. Much of the information was directly responsive to enquiries from the opposing party and therefore presumed to be relevant and necessary.

The information about the change in control of the LIRA is plainly material – control of and entitlement to the LIRA is the most substantial issue remaining between the parties. The updated disclosure confirmed the only remaining issues for resolution. [ 63 ] Ms. Coble argues that the disclosure did not result in a settlement and consequently did not advance the action.

However, the impact on settlement negotiations is not the test for a significant advance. [ 64 ] Sometimes disclosure of new issues, such as the change in control of the LIRA, can materially advance the action by expanding or clarifying the real dispute between the parties – even if that disclosure initially pushes the parties apart.

Issue identification is crucial to resolving the real dispute and can arise well after an action begins, especially if the issue was not initially understood or disclosed, or a change in circumstances alters the issues. [ 65 ] The Alberta Court of Appeal confirmed this approach to a “significant advance” in Sutherland v Brown , 2018 ABCA 123 at para 11 , which affirmed the following statement from Ro-Dar Contracting Ltd v Verbeek Sand & Gravel Inc , 2016 ABCA 123 at para 20 [ Ro-Dar ] : The legal error identified by the appellant is an overemphasis on the “outcome” of various steps that were taken. ...

The appellant argues that an action can be significantly advanced without the action actually being settled, and without the action actually being set down for trial. That is an accurate statement, because steps that serve to narrow the issues, complete the discovery of documents and information, or clarify the positions of the parties might well significantly advance the action. “Outcomes” should not be overemphasized. [ emphasis added ] [ 66 ] Here, Mr. Atkin’s passing changed the final disposition of the LIRA and created a new issue between the parties.

Once the issue was tabled, the parties could work towards resolving it, whether through settlement or trial. [ 67 ] I find that the shared financial information moved the litigation forward in a meaningful way considering its nature, value, importance and quality, and the genuineness and timing of the advance. The “drop dead” application fails on this basis as well. iii) Foreclosure proceeding [ 68 ] The deficiency judgment was granted in June 2021 for $88,316.15 plus solicitor/client costs calculated as $8,378.25. Ms.

Coble submits that the amount of the deficiency would have been known to the parties much earlier, but scant evidence is before me about the timing of that knowledge. Nothing in the record suggests that the amount of costs owing, which is substantial, was known to the parties before March 27, 2019. Indeed, the foreclosure proceeding was not even commenced until May 2019. [ 69 ] Ms. Coble’s vague evidence is that before Mr.

Atkin’s death, they were both aware of the “rough amount of the shortfall.” However, her evidence does not disclose what they knew before March 27, 2019 or explain what their understanding of the “rough amount" of the deficiency was by that date. [ 70 ] The determination of the deficiency, including the costs, was a material consideration in the dispute between these parties. [ 71 ] Ms. Coble deposes that the judgment in the foreclosure proceeding failed to affect the matrimonial property litigation or result in “fruitful or more fulsome conversations” between the parties’ lawyers.

However, that is not the standard for assessing a significant advance. Meaningful progress is not necessarily defined by settlement negotiations, especially where the discussions are privileged and cannot be scrutinized for their contents. Moreover, the Court is not bound by a party’s opinion that the litigation stagnated or that a step did not advance the action.

The Court conducts its own inquiry. [ 72 ] In the circumstances of this case, I conclude that the judgment in the foreclosure proceeding was an advance in a closely related and inextricably linked proceeding that significantly advanced the matrimonial property action. See: Direct Horizontal Drilling Inc v North American Pipeline Inc , 2017 ABQB 653 at para 7 . The “drop dead” application also fails on this ground. iv) Consumer proposal [ 73 ] Ms. Coble’s consumer proposal was accepted in September 2020 resulting in an obligation of $27,500 payable to her creditors over five years.

As a consequence of the proposal, the Estate cannot claim contribution from Ms. Coble for any of the joint marital debts. Kristina Atkin deposes that the entire debt load of the marriage now falls on the Estate, including the foreclosure deficiency judgment of

$88,316.15 plus the costs of $8,378.25. [ 74 ] I find that the acceptance of the consumer proposal was a change in circumstances that materially altered the financial obligations of the parties. Ms. Atkin’s evidence suggests that the consumer proposal was disclosed to the Estate sometime between September 2020 and September 2021. [ 75 ] Disclosure of the consumer proposal to the Estate significantly advanced the litigation by further clarifying the real issues between the parties. The “drop dead” application also fails on this basis. [ 76 ] In

summary, the application to dismiss for long delay is refused. Prejudicial delay under Rule 4.31 has not been established [ 77 ] If delay occurs in an action, the Court may “dismiss all or any part of a claim if the Court determines that the delay has resulted in significant prejudice to a party”: Rule 4.31(1)(a). The applicant bears the burden of proving the prejudice. Alternatively, where the Court finds that the delay in the action is “inordinate and inexcusable,” the delay is “presumed to have resulted in significant prejudice to the party that brought the application”: Rule 4.31(2). [ 78 ] Ms.

Coble offers no evidence of prejudice. Instead, I am asked to find inordinate and inexcusable delay from which prejudice may be presumed. [ 79 ] The Court may analyze a delay application under Rule 4.31 in many different ways; no universal formula exists: Transamerica Life Canada v Oakwood Associates Advisory Group Ltd , 2019 ABCA 276 at para 15 [ Transamerica ] . [ 80 ] One approach is a six-part inquiry articulated in Humphreys v Trebilcock , 2017 ABCA 116 at paras 150-156 :

a) Has the respondent failed to advance the action to the point on the litigation spectrum that a litigant acting reasonably would have reached within the time frame under review?

b) Is the shortfall or differential of such magnitude to qualify as inordinate?

c) If the delay is inordinate, has the respondent provided an explanation for the delay? If so, does it justify inordinate delay?

d) If the delay is inordinate and inexcusable, has this delay impaired a sufficiently important interest of the defendant so as to justify overriding the plaintiff’s interest in having its action adjudged by the court? Has the defendant demonstrated significant prejudice?

e) If the respondent relies on the presumption of significant prejudice created by R. 4.31(2), has the plaintiff rebutted the presumption of significant prejudice?

f) Is there a compelling reason not to dismiss the respondent’s claim? [ 81 ] The Alberta Court of Appeal cited simpler formulations of the test in Arbeau CA , at para 36 : Whether delay is “inordinate” is “to be determined in light of all of the circumstances of a particular case”: Kuziw v Kucheran Estate , 2000 ABCA 226 at para. 30 .

Inordinate delay is that which is “much in excess of what was reasonable having regard to the nature of the issues in the action and the circumstances of the case”: Kuziw at para 31 (emphasis added). “As a rule, until a credible excuse is made out, the natural inference would be that (inordinate delay) is inexcusable”: Lethbridge Motors Co v American Motors (Canada) Ltd , 1987 ABCA 150 at para 12 , quoting Allen v Sir Alfred McAlpine & Sons Ltd , [1968]1 All ER 543 at 561 (CA) . [ 82 ] The Court of Appeal explained in Transamerica at para 21 that regardless of the test utilized, the objective of the exercise must be remembered: It is to determine whether the delay is inordinate, inexcusable, or otherwise, has caused significant prejudice to the defendant.

Any particular class of proceedings will include some that proceed quickly, some that proceed slowly, and a great many in the middle. In determining the reasonable expectation of progress for the purpose of striking out an action for delay , regard must be had to all categories. Delay is not fatal just because the litigation has not progressed to the point that the “fastest” or even the “average” proceeding of that type would have reached.

In order to be struck, the action must generally fall within the slowest examples of that type of proceeding, and it must be so slow that the delay justifies striking out the claim. Further, even very short delays can be grounds for striking the action if significant prejudice has resulted. “Significant prejudice” remains the ultimate consideration. [ 83 ] Here, the pace of the litigation has been slowed by changes in circumstances over time: the passing away of Mr. Atkin; the change in control of the LIRA; the Grant of Administration; Ms.

Coble’s consumer proposal; the deficiency judgment in the foreclosure proceeding. I am satisfied that the overall delay is not “ much in excess of what was reasonable having regard to the nature of the issues in the action and the circumstances of the case.” Put another way, I find that Mr.

Atkin and his Estate have not failed to advance the Counterclaim to the point on the litigation spectrum that a reasonable litigant would have reached within the time period under review given the circumstances of the case. [ 84 ] Even if I had characterized the overall progress in the action as having some shortfall against reasonable expectations, the magnitude would not qualify as inordinate. Prejudice could not reasonably be presumed from the overall pace of the litigation. [ 85 ] The application to dismiss for prejudicial delay is refused.

No remedial procedural order required [86] Rules 4.33(3) and 4.31(2) contemplate the Court making a procedural order if the application to dismiss for either long delayor prejudicial delay is refused. Where there has been delay, “it is seldom appropriate for the Court to simply dismiss an application ... Aprocedural order of some kind is generally appropriate”: Ro-Dar at para 18. [87] Ms. Coble did not propose specific terms for expediting the litigation.

She appears to have little motivation to do so since theonly remaining assets of significance not claimed by creditors – the LIRA and the related cash – are already under her control (althoughmost of the cash is held in trust). [88] If either party wants a procedural order to move the litigation forward, they may contact me within 21 days to request a shorthearing about a proposal. Substituting the Estate [89] Ms. Coble does not oppose substituting Ms. Atkin as the personal representative of the Estate for Mr.

Atkin if theCounterclaim is allowed to proceed. [90] The Estate did not expressly request permission to continue the action and lift the stay of proceedings, but that was clearlyimplied by the application. [91] In Dressler v Dressler, 2005 ABQB 93 at para 32, Justice Germain held that the language of s 16 in the MPA is so “plain,unambiguous and clear” that an estate is “entitled” to continue the matrimonial property action.

My colleague relied on Boychuk vBoychuk Estate (1993), (SK KB), 115 Sask R 10 (Sask QB) at para 9, appeal dismissed (1993), (SK CA), 116 Sask R 54 (Sask CA), in which similar language under s 30 of Saskatchewan’s Family Property Act, SS 1997, c F-6.3 washeld to be so unequivocal that no order was required. [92] In Alberta, Rule 4.34(1) expressly contemplates an order. No reason has been identified for declining to make such an orderhere.

I therefore grant permission for the Estate to continue with the action, including the Counterclaim. [93] In these circumstances, where the Grant of Administration has issued, the naming convention is for the Estate, rather thanKristina Atkin as the representative, to be named as the substituted party. The style of cause shall be amended accordingly. The LIRA and the cash payment should not be transferred tothe Estate [94] Prior to the marriage, Mr. Atkin contributed to a pension plan under the Local Authorities Pension Plan. He subsequentlyconverted the plan into a LIRA with the Royal Bank of Canada (RBC). Mr.

Atkin designated Stephen Boyd as the beneficiary under theLIRA. [95] After Mr. Atkin passed away, the RBC informed Mr. Boyd that the LIRA must be administered in accordance with theEmployment Pension Plans Act, SA 2012, c E-8.1 and that by operation of the Act, Ms. Coble has rights as a “pension partner” in priorityto the rights of any beneficiaries. Under s 1(3)(

a) of the Act, pension partners include married couples who have lived separate and apartfrom each other for a continuous period less than or equal to 3 years. Ms. Coble qualified as a pension partner. By operation of s 89 ofthe Act, the LIRA apparently “must be provided to the surviving pension partner.” [96] Nothing in the evidence indicates that Ms. Coble has attempted to liquidate the LIRA. To the contrary, her evidence is thatliquidation would have substantial adverse tax consequences, which she is apparently unwilling to suffer. [97] The record also indicates that Ms.

Coble received $5,400 from the RBC in relation to the LIRA, although the circumstancesare not explained. $5,300 of that amount is apparently being held in trust by Ms. Coble’s lawyer. [98] The Estate seeks a direction that Ms. Coble must transfer the value of the LIRA and the $5,400 to the Estate either as finalrelief or interim relief. The only authority offered for granting such an order is s 9 of the MPA. [99]

Section 9 empowers the Court to impose a wide range of relief:

(2) The Court, in order to effect a distribution under

section 7, may do any one or more of the following: (

a) order a spouse to pay money or transfer an interest in property to the other spouse; (

b) order that property be sold and that the proceeds be divided between the spouses as the Court directs; (

c) by order declare that a spouse has an interest in property notwithstanding that the spouse in whose favour the order is made hasno legal or equitable interest in the property.

(3) To give effect to an order under this

section the Court may do any one or more of the following: ... (

j) make any other order that in the opinion of the Court is necessary.

[ 100 ] The Estate asks first that I make a final distribution under the MPA , on a Chambers application, because allocating the funds to the Estate is “just and equitable.” [ 101 ] Chambers is generally for interim relief pending the final adjudication of the action. The MPA contemplates an action for the distribution of matrimonial property. Here, the determination of factual and legal issues around the LIRA and the $5,400 payment requires a trial. Ms. Coble is not prepared to waive her right to a trial.

I therefore decline to make a final order. [ 102 ] The Estate’s alternative position is that the proceeds of the LIRA, along with the $5,400 payment, should be transferred to the Estate pending trial. The relief sought is effectively an interim distribution of matrimonial property. [ 103 ] I recently canvassed the Court’s jurisdiction to grant interim relief under the MPA in Holmes v Holmes , 2023 ABKB 1 at paras 13-16 [ Holmes ]. An interim distribution is an extraordinary remedy and should generally be avoided if the final property rights of the parties will be compromised.

It is “effectively an advance on the party’s ultimate entitlement to their share of the matrimonial property under the Matrimonial Property Act as determined at trial”: Fleming v Fleming , 2016 ABCA 88 at para 22 . [ 104 ] As I explained in Holmes , at para 35 , the Court’s exercise of discretion in granting an interim distribution of matrimonial property attempts to balance several non-exhaustive factors, including:

a) The potential benefit to each party;

b) The potential prejudice to each party, including tax implications and the risk of dissipation;

c) Whether the distribution will determine the final disposition of property, including for specific assets;

d) The extent to which any potential prejudice is mitigated by the availability of other matrimonial assets to equalize the final distribution of matrimonial property;

e) Whether the value of the net assets for final distribution substantially exceeds the amount sought for an interim distribution;

f) Whether the final distribution of property is subject to exemption claims pursuant to ss 7(2) and 7(3) of the MPA ;

g) Whether and to what extent an unequal distribution of property is possible at trial after considering the matters indicated in s 8 of the MPA ;

h) Whether urgency has been demonstrated;

i) Whether the piecemeal distribution of property invites unnecessary litigation and expense, undermines judicial economy, or dissuades a litigant from advancing the claim in a diligent manner; and

j) Whether a fundamental imbalance exists between the parties in their ability to protect their respective interests absent an interim distribution. [ 105 ] On the record before me, the Estate has not established its entitlement to the proceeds of the LIRA or the $5,400. The bank has concluded that Ms. Coble controls the LIRA in accordance with the Employment Pension Plans Act . Without deciding the issue, the material before me suggests Ms. Coble has a strong prima facie claim to these assets. The Estate’s competing claim for an exemption should be resolved through a trial or a

summary adjudication application. [ 106 ] The Estate identifies no interim benefit to either party in transferring the LIRA’s proceeds and the cash payment to the Estate. If the concern is that the funds will be dissipated, a preservation order might be appropriate, but no such application is before me, and the risk of dissipation has not been shown. Counsel for Ms. Coble holds $5,300 of the $5,400 in trust (although the terms of the trust are not in evidence). Nothing in the evidence suggests that Ms. Coble is attempting to liquidate the LIRA. [ 107 ] The prejudice to Ms. Coble is substantial.

Based on the consumer proposal, I infer that she does not have the financial resources to transfer the value of the LIRA to the Estate. She would be required to liquidate the LIRA, suffering adverse tax implications. Based on the most recent financial disclosure, Ms. Coble’s understanding is that the Estate is insolvent. Due to the parties’ extensive liabilities, the net assets for final distribution offer no protection for Ms. Coble’s interest in the LIRA and the related cash payment. [ 108 ] Having considered the applicable factors, I decline to order an interim distribution to the Estate.

Conclusion [ 109 ] The application to dismiss the Counterclaim for long delay or alternatively prejudicial delay is refused. The cross-application for an interim distribution of matrimonial property is dismissed. [ 110 ] “The Estate of Christopher Atkin” is substituted as the Defendant and Plaintiff by Counterclaim and the style of cause is amended accordingly.

Permission is granted for the Estate to continue with the action, including the Counterclaim, and the stay of proceedings is lifted. [ 111 ] Either party may contact me within 21 days to request a short hearing for a procedural order to move the litigation forward. [ 112 ] If the parties cannot resolve the costs of these applications, they are to contact me within 21 days, failing which the parties will bear their own costs.

Heard on the 14 th day of December, 2022. Dated at the City of Edmonton, Alberta this 6 th day of January, 2023. Kevin Feth J.C.K.B.A. Appearances: Sam W. Rollans Bruyer & MacKay LLP for the Plaintiff/Defendant by Counterclaim Tracy King The Estate House for the Defendant/Plaintiff by Counterclaim