Chiveldave v Chiveldave, 2022 ABKB 647

Court of King’s Bench of Alberta Citation: Chiveldave v Chiveldave, 2022 ABKB 647 Date: 20220928 Docket: 4803 189464 Registry: Edmonton Between: Suzanne Marrie Chiveldave Plaintiff/applicant/cross-respondent - and - Robert William Gustave Chiveldave Defendant/respondent/cross-applicant _______________________________________________________ Endorsement of the Honourable Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] The core issues are whether retroactive and ongoing spousal support should be paid and, if so, how much and for how long.

One sub-issue is whether certain matrimonial-debt payments made by the husband should be credited against any spousal-support obligations.

[ 2 ] I find that both species of spousal support are payable and that the husband is entitled to certain matrimonial-debt-payment credits. B.

Background [ 3 ] The couple began living together in May 1990 and married on September 7, 1991. [ 4 ] Their child was born in 1996 (no longer a “child of the marriage” per the Divorce Act definition). [ 5 ] They separated sometime between August 27 and November 12, 2019. (The wife asserts the former date; the husband, the latter.) [ 6 ] Whichever separation date is right, this was at least a 29-year relationship. [ 7 ] The wife seeks retroactive spousal support from September 1, 2019 to the present, as well as ongoing spousal support. [ 8 ] The husband objects to any retroactive spousal support.

As for ongoing, he proposes monthly support of $900, albeit not payable until the fall-out of the wife’s recent decision to relocate to B.C. effective early October (including the sale or other disposition of the matrimonial home), as well as the clearance of the parties’ matrimonial debts (discussed further below), are addressed. [ 9 ] Per the wife, her tax-reported-and-assessed income for 2019, 2020, and 2021 was $74,516, $66,008, and $76,400, respectively, with the husband’s $136,098, $149,909 and $128,573, respectively. [ 10 ] Even focusing only on 2020 and 2021, the husband out-earned the wife by approximately $136,000.

C. Spousal support Entitlement to spousal support [ 11 ] Here are the wife’s submissions on entitlement: It is well recognized that there are three grounds of entitlement to spousal support: a. Compensatory; b. Contractual; and c. Non-compensatory. All three grounds of entitlement to spousal support are based on the premise that marriage is a “joint endeavour”, a socio-economic partnership. It is submitted rthat the Wife is entitled to compensatory spousal support. [She] has suffered an economic disadvantage arising from the marriage or its breakdown.

The Wife’s position is that she is entitled to both retroactive and ongoing spousal support. … [wife’s concise letter, p 5]. [ 12 ] The husband responded: The Supreme Court of Canada … has stated that spousal support is not a presumptive right such as child support. Spousal support is intended to promote self-suffiency of both parties following the breakdown of a marriage. When making an order for ongoing spousal support, ss. 15.2(4) of the Divorce Act … requires the court to consider the conditions, means, needs and other circumstances of each spouse.

Subsection 15.2(6) further requries the court to ensure that such an order recognize any economic advantage or disadvantage to either spouse, relieve any economic hardship of either spouse or … promote economic self-sufficiency of each spouse, as a result of separation. … spousal support can be awarded on a compensatory basis or non-compensatory basis. Compensatory support may be appropriate where on eparty has gained an advantage in their ability to acquire assets that should be shared ….

Non-compensatory support may be appropriate where a spouse is dependant on the other for reasons such as medical disability, or lack of work experience [or] education. … the court [must] consider each party’s standard of living as relevant to compensatory support, the longer the marriage, the greater the presumptive claim to equal standards of living upon separation. … spouses [also] has an obligation to contribute to their own support and lifestyle …. [The husband] was not the only income earner throughout this relationship.

In fact [his] income has fluctuated significantly thorughout the parties’ marriage as he completed a significant amount of schooling and training, with multiple significant job changes throughout. The evidence shows [the wife] has maintained a similar standard of living since separation , particularly in comparison to [the husband]. [She] maintained the majority of significant household items , while [the husband] was forced to repuchase and replace his basic needs. [She] continues to live in the matrimonial home while [he] pays the mortgage.

She enjoys a new and unnecessary vehicle she chose to purchase and budget, while [he] was forced to sell his perfectly fine vehicle and obtain a new one which could

absorb the unplanned cost of [her] original monthly vehicle payment …. Further, should [she] be awarded a monthly spousal support payment, she will be able to maintain a similar standard of living, as that support would significantly contribute to the monthly cost of a reasonble home, where [his] budget does not . Since separation [she] has gained an advantage in opportunity to save money and live without a monthly mortgage payment while still maintaining her half interest in the home .

Meanwhile [he] has been saddled with significant matrimonial debt, significant fluctuation in his income, and fruitless negotiation attempts. [emphasis added] [husband’s concise letter, pp 3 and 4]. [ 13 ] I find entitlement to compensatory support. The driving factor is the metamorphosis of the husband (18 at the start of cohabitation; the wife, 27) over the course of the marriage. At the onset, he had apparently just completed high school. In the early years of the marriage, the wife’s business endeavours and associated earnings were the main fuel for the family engine.

As well, it was those endeavours and earnings that paid the bills, or the bulk of them, for the long stretches of 1999-2002 in which the husband launched and completed his studies and apprenticing to become a ticketed electrician (along with fibre-optic technician training). [ 14 ] Over their time together, and materially assisted by the wife, the husband acquired and honed the foundational skills that have allowed him to earn the six-figure income he enjoys to this day (2022 base income (per him): approximately $102,000). [ 15 ] The evidence also shows that the wife provided the bulk of the care for their child over their relationship, enabling him to pursue his training and associated field work without the added weight of child-care responsibilities. [ 16 ] We also have the backdrop of a (minimum) 29-year relationship. [ 17 ] In these circumstances, I find the wife is entitled to share in the husband’s enhanced earnings in the form of compensatory spousal support (as discussed further below). [ 18 ] I also find entitlement on non-compensatory grounds. [ 19 ] Here I reject the husband’s core position that (somehow) the wife has “maintained a similar standard of living post- separation.” [ 20 ] First, she no longer had the benefit of his (considerably higher) income.

As noted above, in 2020 and 2021 (combined) alone, he out-earned her by approximatley $136,000. [ 21 ] Second, his attempts to demonstrate similar post-separation standards of living fall flat: • “[she] has maintained the majority of the significant household items, while [he] was forced to repurchase and replace his basic needs”: this goes more to property than support.

In any case, no evidence showed the value of the retained items or what actual “repurchase and replace” expenses he incurred; • “[she] continues to live in the matrimonial home while [he] pays the mortgage”: the husband also has a place to live (with his new partner, effectively paying rent of $600 monthly). In any case, his mortgage payments will be factored into the matrimonial-debt aspect (discussed further below); • “vehicles” aspect (as described above): the evidence is not clear on how much (if any) the wife financed on the purchase of her new vehicle (versus paid outright).

Plus, his evidence of having effectively been forced to assume the continuing burden of her former- vehicle payments (folding them into his own purchase of a new vehicle) is unclear. He apparently received trade-in credit for her former vehicle. If he was unsatisifed with the credit amount, he did not explain why he did not simply sell that vehicle on his own.

To the extent the husband is emphasizing any coverage by him of her vehicle payments (before the trade-in), that will be addressed in the matrimonial- debt adjustments (see below); • “should [she] be awarded a monthly apousal support payment, she will be able to maintain a similar standard of living”: that is the objective here, not a reason for not awarding such support; • “[such support] would significantly contribute to the monthly cost of a reasonable home [for her], [whereas] [his] budget does not [or would not]”: the husband does not explain why the former aspect is objectionable or why the latter aspect is the case.

As noted, he apparently has acceptable (and relatively low-priced rental accommodation) currently, and the payment of spousal support (quantum discussed further below) will not prevent him from continuing with that arrangment or otherwise from making his own “reasonable home” arrangement; and • “since separation [she] has gained an advantage in opportunity to save money and live without a monthly mortgage payemnt while still maintaining her half interest in the home.

Meanwhile [he] has been saddled with significant matrimonial debt, significant fluctuation in his income, and fruitless negotiation attempts”: the central (debt payment) thrust here will be addressed below, with the husband to receive appropriate credit for his matrimonial-debt payments. [ 22 ] These arguments do not, in the end, adequately explain the husband’s “similar standard of living” theory.

I find instead that, viewed through the key prism of available monthly income, the wife’s standard of living has sharply diminished post-separation. [ 23 ] Accordingly, the wife is entitled to spousal support on both compensatory and non-compenatory grounds. Retroactive spousal support [ 24 ] The husband objected to such support: [recap of the key findings of the Supreme Court of Canada on retroactive spousal support in Kerr v Baranow , 2011 SCC 10 ]] [The wife] has not experienced hardship as a result of the breakdown of the marriage, [he] has. [Her] lifestyle has not changed since separation

except that she no longer has uncontrolled access to [his] credit and employment income. [Note: this is the loss of access emphasized by me above, in finding a material drop in her standard of living.] [He] has worked hard not to continue to incur unnecessary debt as [she] did throughout the marriage. Further, [she] has continued to enjoy the advantages she would have received through an ongoing spousal support claim via monthly debt and mortgage payments throughout the past three years.

While [she] has made claims of hidden assets, [he] has been forced to spend resources refuting these baseless claims. [Her] lack of need for support beyond the monthly mortgage and debt is further showcased in the three-year delay she has taken in making this application to the Court. Where support was a dire need, [she] has had ample opportunity to make this application or respond in good faith to the many offers to settle made to her .

It is further argued that [she] did not provide clear notice that support was being sought, given the ongoing negotiations between counsel and the lack of any agreement or consent in this matter . [He] also claims that [she] has engaged in blameworthy conduct when ceasing to pay the loan associated with her vehicle with little notice, and no reasonable attempts to resolve her apparent need for a new vehicle . [emphasis added] [ 25 ] I reject these arguments: • as explained above, her standard of living, gauged by available income, has decreased materially; • as also explained above, the necessary matrimonial-debt-payment adjustments will be made (see below); • the husband did not provide any details of the “hidden-asset claims” (instead simply referring, in one of his affidavits, to “[her] constant false accusations of ‘hidden money’”) or the amount spent by him in “refuting these baseless claims”; • as for the asserted “three-year delay … in making this [spousal support] application”, the wife’s statement of claim (filed November 22, 2019 i.e. either within three months or right on the heels of the separation, depending on whose date is accepted) expressly notes the pursuit of both ongoing and retroactive spousal support.

Then followed her family application, filed January 8, 2020, seeking retroactive spousal support back to November 1, 2019 as well as ongoing spousal support. Followed by a family-docket-court endorsement in September 2021 requiring mutual disclosure and certain efforts towards settlement. A further such endorsement in May 2022 setting the application in question (in part for retroactive and ongoing spousal support) for September 19, 2022. And the wife’s further family application filed June 29, 2022 formalizing that endorsement direction.

Aside from complaining that no settlement was achieved (as discussed further below), the husband did not actually explain how the delay here was unreasonable or, in any case, why the wife was entirely or largely responsible for it (if she indeed was); • attempts to settle do not undercut the wife’s clear position, per the above-noted steps, that she was entitled to both retroactive and ongoing spousal support (more on the settlement aspect below); and • as explained above, the husband did not explain what particular prejudice the wife’s walking away from her former vehicle (even if on short notice to him) caused him. [ 26 ] The husband did not raise other arguments against retroactive support. [ 27 ] Applying the lessons of Kerr v Baranow (cited earlier) at paras 200-219 (particularly paras 205, 207-210, 212, and 217), as well as those of Fraser-Tabak v Tabak , 2016 ABCA 79 (paras 90-93 ), Friesen v Friesen , 2020 ABQB 103 (Loparco J.) (paras 99-125 ), and Hagan v Hagan , 2021 ABQB 330 (Johnston J.) (paras 47-59 ), I find no unreasonable delay in the wife’s pursuit of retroactive (or ongoing) spousal support (albeit shifting the start date from September 1, 2019 to December 1, 2019 i.e. the first month after filing her statement of claim) and also a demonstrated need for such support in light of the material drop in the wife’s standard of living post- separation. [ 28 ] Noting that matrimonial-debt-payment adjustments will be made (see below), I also find insufficient evidence that requiring retroactive spousal support as indicated will cause undue hardship to the father. [ 29 ] Accordingly I direct such support, as calculated by the wife in her “Table of Calculations for Retroactive Spousal Support” for 2019 through to the end of September 2022 (albeit limiting support for 2019 to the month of December, and also changing the father’s tax-reported income for 2020 to $149,909, as per his notice of assessment for that year), with a threshold matrimonial-debt-adjustment credit to be applied (as discussed below). [ 30 ] The father must clear the net spousal-support arrears (i.e. after deducting the matrimonial-debt-payment adjustment) by minimum monthly payments of $1,000. [ 31 ] The father’s eyes were opened, early on, to the prospect of having to pay both retroactive and ongoing spousal support.

His overarching complaint here (factoring out the matrimonial-debt aspect) is, effectively, that “she should have settled this claim earlier.” [ 32 ] With settlement efforts failing, her claim was, and is, still here, and must now be paid.

Evidence and submissions bearing on unsuccessful settlement efforts [ 33 ] On the subject of settlement, as noted, the husband’s concise letter and affidavits included references to settlement attempts, including descriptions of core elements of certain settlement offers. [ 34 ] In her concise letter and at the opening of the application, the wife asked that some of those references be struck or at least disregarded. [ 35 ] I note that, in some circumstances, disclosing the mere existence of unsuccessful settlement efforts may be unobjectionable and even useful: see, for instance, Hover v Metropolitan Life Insurance Company , 1999 ABCA 123 (unnumbered paragraph beginning “Respondent’s counsel argued that …” in the judgment of O’Leary JA – disclosure of fact of unsuccessful settlement negotiations

necessary to explain pace of litigation). [36] However, in the present case, the husband attempted to use the fact of failed settlement attempts, and to blame the wife forthose failures, to try to undercut her support claim (effectively, “she should have accepted our reasonable offers and saved us all this timeand expense”). [37] But how can such an argument be made without violating the privilege attaching to such negotiations i.e. without necessarilysparking an inquiry into what offer(

s) and counter-offer(

s) were made, and when, and what led to the negotiations failing? [38] As noted, some of the husband’s disclosures here went beyond simply the fact of unsuccessful negotiations, getting intocertain settlement terms e.g. para 16 of the husband’s July 12, 2022 affidavit and also the paragraph beginning “The Parties haveengaged in negotiations …” on page 3 of his concise letter). [39] On those disclosures, I note the conclusion of Chamberlist J. in SAB v JRB, 2003 BCSC 490 (para 13), where failed-settlement-discussion details had been disclosed: The assertions in the affidavit material and the attachments sought to be expunged are clearly without prejudice references.

The fact ofsettlement discussions regarding child support having taken place could have been referred to in the affidavit material in a generalstatement.

Recourse to the actual documents and the actual contents of the discussions is really quite unforgivable. … [para 13][emphasis added] [40] In Evans v Evans, (ONSC), where the issue was whether certain spousal-support-focused pleadingsamendments should be made, and certain failed-settlement-efforts evidence had been tendered, Sills J. ruled: The respondent also seeks an order striking paragraph seven, eight and nine of the applicant’s affidavit sworn August 30, 2005 andcertain productions being numbers 13, 16 (a-n), 17 (a-g), 18 (a-

m) and 19 (a-

f) of the applicant’s third supplementary affidavit ofdocuments sworn September 16, 2005 on the basis of privilege arising from unsuccessful settlement negotiations. Paragraphs seven, eight and nine of the applicant’s affidavit sworn August 30, 2005 are privileged as being referable to failedsettlement negotiations, are irrelevant to the issues before the court and shall be struck. Productions referred to above are not specifically disclosed other than through factums of counsel which describe them as documentsbetween counsel and between solicitors and counsel in the course of settlement discussions.

Although counsel for the petitionerminimizes the purposes for which these documents are intended, i.e. the timing of the settlement discussions to explain delays inprosecuting the action, the productions in question are privileged on their face.

The relevance and admissibility of any of thesedocuments shall be left to any rulings by the trial judge. [paras 5-7] [emphasis added] [41] See also CAS v NPC, 2020 ABQB 421: The mother and father both referred to various discussions, including tentative arrangements (or at least understandings of sucharrangements), in a collaborative-law setting or otherwise reflecting unsuccessful settlement attempts. I place no weight on any suchdiscussions or un-ripened arrangements.

While neither party addressed the point, such discussions were likely without prejudice: Friesenv Friesen. [2020 ABQB 103 (Loparco J.) at para 76]. [my decision] [para 27] [42] In the present case, while the mere fact of settlement attempts may have been relevant (as part of explaining the pace of thelitigation and whether the mother had unreasonably delayed in pressing her support application), none of the contents of those privilegeddiscussions should have been disclosed.

And the husband should not have offered any editorial commentary e.g. effectively blaming thewife for no settlement having been achieved. [43] In the end, I disregarded the evidence and submissions bearing on the contents of settlement discussions and blaming themother for no settlement. [44] In closing here, I also note an exhibit (“D”, to the wife’s September 6, 2022 affidavit) disclosing a term of a settlementproposal, which also should not have been put forward on this application and which I also disregarded.

Matrimonial-debt payments (credits against spousal-support obligations) [45] The parties agree that payments by a spouse to eliminate or reduce matrimonial debt can be credited against supportobligations: see LL v DB, 2018 ABQB 886 (paras 31-33 and 55-63), Bull v Bull, 2013 ABQB 366 (Germain J.) (paras 33 abd 34), andthe discussion in the Spousal Support Advisory Guidelines – The Revised Users’ Guide (Professor Carol Rogerson and Professor RollieThompson) (April 2016) – “Debt Payments” (12.2). (As far as I can tell, the present case is one of “debts exceed assets.”) [46] The parties agree that certain debts are indeed matrimonial debts and that the husband made certain support-credit-creatingpayments on those debts, namely (in part as reflected in the wife’s “Chart of Matrimonial Debts”): • matrimonial-home mortgage ($33,576); • mortgage insurance ($2,894); • travel-trailer insurance ($2,287); • hob-tub loan ($4,063); • ATB line of credit (ending 6800) ($6,586);

• Desjardins VISA (ending 1002) ($544); • CIBC VISA (ending 4129) ($5,924); • ATB personal loan (travel trailer) ($5,788); • ATB line of credit (ending 8300) ($266); • CMHC chattel loan (ending 2100) ($10,076); and • Scotiabank MasterCard (ending 4853) ($26). [ 47 ] These payments add up to $72,030, generating a $36,015 credit for the father i.e. his clearance of the wife’s half-share of those liabilities. [ 48 ] The parties differed over whether the husband should receive credit for one-half of these additional payments asserted by him: • an additional $4,336 paid on the ATB line of credit (ending 6800); • an additional $281 paid on the ATB line of credit (ending 8300); • $10,500 paid on a Walmart MasterCard (ending 0371); • $6,064 paid on an ATB MasterCard (ending 0499); and • $29,785 paid on a Toyota Tundra truck loan. [ 49 ] On the first two (ATB line of credit) claims, the wife asserts that the loans were paid off some time in the spring of 2021, with the husband over-claiming with respect to asserted payments made after the apparent loan-cleared dates. [ 50 ] On the Walmart loan, the wife argued that the father had not put forward sufficient evidence of the debt (e.g. monthly statements) or of his payments. [ 51 ] On the ATB MasterCard, the wife asked the husband in recent examinations to provide information as to the claimed clearance of that debt.

The husband took the request under advisement. [ 52 ] By the time of the recent application, as I understood it, none of various undertakings taken under advisement by him had been “declared” (i.e. as to whether it would or would not be answered), let alone (for those to be answered) answered. [ 53 ] Both parties addressed the matter of the outstanding undertakings (all by the husband). [ 54 ] Both agreed that I should not hold this decision pending the “declarations” on those undertakings or (for those to be answered) the answers. [ 55 ] Both referred to a potential trial in this matter at which such undertakings (if any are to be answered) might be useful. [ 56 ] In light of those positions, I will leave as open questions whether the father is entitled to further credits as claimed or otherwise on the first four disputed items above. [ 57 ] If the parties cannot agree on those items after receiving whatever further undertaking information may be provided or the husband otherwise substantiating his claims to those extra credits, I am willing to decide the points after receiving further submissions from the parties. [ 58 ] If the parties prefer to take those points to (or as part of a larger) trial, they can do that as well. [ 59 ] As for the fifth disputed credit (Toyota Tundra), I see no reason why this post-separation purchase by the husband should be treated as matrimonial debt.

Accordingly, I deny the husband’s request to factor in those payments. [ 60 ] The wife argued that she should receive credits for certain “lot payments” made by her on the mobile home since the separation (approximately $18,000) and also payments of approximately $9,300 on a Walmart MasterCard (ending 1498). [ 61 ] The husband argued that the lot payments should be treated as akin to utility payments and, as such, as the exclusive obligation of the wife, who had sole occupancy of the matrimonial (mobile) home after separation. [ 62 ] As for that Walmart credit card, he argued that it is or was the wife’s personal credit card and included only post-separation debt.

The wife was asked in the recent examinations to provide certain information bearing on that card. Her update affidavit includes a letter from her counsel to the husband’s counsel referring to certain statements for that card being attached. However, I did not see those statements among the application materials. [ 63 ] I will treat that claim the same as the four disputed claims above. [ 64 ] As for the lot-payment claim, I agree with the husband: the wife, as the sole occupant of the matrimonial home after separation, had to cover this payment as one of the costs of her occupancy.

She has to bear that cost in the same way that the husband has had to bear his occupany costs in his new residence i.e. under his arrangement with his new partner i.e. with the parties’ separate occupancy costs being their sole and individual responsibility post-separation.

[ 65 ] The same goes for property taxes on the matrimonial home: they are, and were, the responsibility, after separation, of the wife, as the sole occupant of the property.

To the extent the husband paid any of those taxes post-separation, he is entitled to a 100 per cent credit for those payments. [ 66 ] As for any adjustments bearing on the wife’s former vehicle (Dodge Durango), as discussed above, I confirm that none are warranted here, with inadequate evidence of the trade-in details, the balance outstanding on that vehicle at the time of the wife turning it over to the husband, and its market value at that time. [ 67 ] All to say: the husband is entitled to a matrimonial-debt-clearing credit of $36,015, with further credits depending on further decisions on the remaining outstanding credit issues, whether by me or by the eventual trial judge. [ 68 ] His current credit shall be increased, as noted, by 100 per cent of any post-separation property-tax payments by him i.e. in respect of the matrimonial home.

Ongoing spousal support [ 69 ] As of October 1, 2022, the husband shall pay ongoing spousal support at per the SSAGs (mid-range) i.e. the same range as proposed by the wife and as accepted above, based on the parties’ tax-reported-and-assessed incomes for 2021 i.e. continuing at the same level as set above for calendar 2021 and year-to-date 2022. [ 70 ] Given the minimum-29-year relationship here, such support shall have an indefinite (not specified) duration, subject to variation in the event of material changes in circumstances. [ 71 ] The spousal-support order shall include the standard obligation to exchange income tax returns and assesments by June 30 of each year, with support for the following year (July 1 to the next June 30) to be set, per the SSAGs (mid-range) using the parties’ tax- reported-and-assessed incomes for the preceding year. (For example, the parties’ tax-reported-and-assessed incomes for 2022, which will or should be known by June 30, 2023, will be the basis for ongoing spousal support for July 1, 2023 to June 30, 2024, and so on.) D.

Exclusive home possession [ 72 ] The husband cross-applied for this relief. [ 73 ] At the application, the mother announced her intention to relocate to a city in British Columbia, effective the start of October 2022. [ 74 ] The husband argued that, instead of exclusive home possesion (i.e. in light of the wife’s stated intention to move), any spousal support obligation should be deferred pending determination of any liabilities and expenses that may fall on him as a result of her move. [ 75 ] In advance of knowing whether the wife will indeed relocate and without any updated evidence about any such liabilities or expenses, I decline to make any order on this front. [ 76 ] If the parties require further directions once it is known whether the wife is in fact relocating and can provide updated information on any disputed liabilities or expenses arising from or associated with that relocation, I will provide them (after giving directions on materials to be filed, page limits, deadlines, and associated points).

E.

Costs [ 77 ] Success has been somewhat divided here, although the wife had the larger share. [ 78 ] However, I decline to award costs to her, directing instead that the parties bear their own costs. [ 79 ] The reason is her counsel’s approach to the “Authorities Relied On” in his concise letter, which listed: • the Divorce Act ; • the Spousal Support Advisory Guidelines …; and • accepted caselaw authority . [emphasis added] [ 80 ] The latter “authority” was not helpful. (And neither were the blanket references to the Divorce Act and the SSAGs i.e. with no pinpointing of the applicable provisions.) [ 81 ] Counsel have a duty to research, present, and distill the key case(

s) governing or in any case bearing on the issues. [ 82 ] On this point, see the Court’s Family Practice Note 2 (“Family Law Regular and Special Chambers”): The Concise Letter must provide a concise

summary of the party’s position. It must: … g. cite any relevant cases …. [para 44]

The following shall be consecutively numbered and appended to the Concise Letter, preceded by a table of contents … … d. copies of the relevant cases or, depending on their length, the relevant excerpts only, with the relevant portions highlighted. [para 45]. [ 83 ] See also the Code of Professional Conduct: Relevant adverse authority: A decision is relevant where it refers to any point of law on which the case in question might turn.

Relevance does not include cases that have merely some resemblance to the case before the court on the facts; it “means cases which decide a point of law” on which the current case depends. With respect to the lawyer’s obligation to discover the relevant law, the duty does not extend to searching out unreported cases. The lawyer does have an obligation to bring to the court’s attention cases of which the lawyer has knowledge and, as well, the lawyer cannot discharge this duty by not bothering to determine whether there is a relevant authority .

Lawyers are not obliged to bring forward facts that the other side has omitted to bring to the court’s attention. They are not obliged to make the other side’s case. They are, simply, obliged to make sure that the court has before it all relevant legal authority, whether helpful or not . [Chapter 5 (“Relationship to the Administration of Justice”) – 5.1 (“The Lawyer as Advocate”) – 5.1-2 (“When acting as an advocate …”) – Commentary #2]. Heard on the 19 th day of September, 2022. Dated at the City of Edmonton, Alberta this 28 th day of September, 2022 . M. J. Lema J.C.Q.B.A. Appearances: Graham K.

Neill Merchant Law Group LLP for the Plaintiff/applicant/cross-respondent (wife) Emily Van Veghel Spectrum Family Law Office for the Defendant/respondent/cross-applicant (husband)