JANICE MULLER PETITIONER - v. -, 2023 SKKB 28

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 28 Date: 2023 02 08 Docket: FLD-MJ-00015-2021 Judicial Centre : Moose Jaw, Family Law Division BETWEEN: JANICE MULLER PETITIONER - and - THE ESTATE OF PAUL JENSEN RESPONDENT Counsel: Talon M. Regent for the petitioner Joanne C. Moser, K.C. for the respondent FIAT RICHMOND J. FEBRUARY 8, 2023 [ 1 ] Janice Muller issued a petition on March 31, 2021 requesting an equal division of the family home and property. Ms. Muller claimed she and Paul Jensen began cohabiting in January 2014 and their relationship ended in July 2019. Mr. Jensen passed away in September 2020.

The representative for his estate [Estate] has filed an answer claiming Ms. Muller and Mr. Jensen were not spouses and the claim should therefore be dismissed. Alternatively, the Estate asked that if the parties are found to be spouses, the property should be divided unequally to account for Mr. Jensen’s exemption claim. [ 2 ] In September 2021, Ms. Muller’s counsel served a notice to disclose but the Estate objected to providing a response because the parties were not spouses. The matter came before Justice Chow on December 7, 2022 following an application by Ms.

Muller’s counsel to compel a response to the notice to disclose. Chow J. ordered the disclosure be provided and in his fiat explained: There has been no application brought by the respondent executor for the estate to have the court determine whether or not the parties are spouses. As a consequence, the application for a reply to the notice to disclose in full is well founded. The petitioner has claimed that she and the deceased were spouses.

The executor of the estate has denied this but the issue is still a live issue and as such the disclosure referred to in the notice to disclose is relevant and should be disclosed. [ 3 ] Chow J. also ordered costs of $250. [ 4 ] In July 2022 the Estate brought an application to strike the petition on the grounds that the parties were not spouses, and the petition therefore disclosed no reasonable cause of action as only a spouse can apply for a division of family property. The application was brought pursuant to Rule 7-9 of The Queen’s Bench Rules . The matter came before Robertson J. who dismissed the

application with costs in the cause stating: The issue of whether there was a valid spousal relationship is a mixed question of law and fact. It cannot be determined on affidavit evidence where that evidence is conflicting. Both parties agree that the action should proceed to pre-trial conference but disagree on whether the action should be bifurcated. The Estate asks that the key issue as to whether there was a spousal relationship be dealt with first, leaving issues of valuation of the estate, including likely exemptions, for later. Ms.

Muller opposes such bifurcation, arguing this would only delay final resolution. Since the question of bifurcation of the action was not part of the relief sought in the application, I decline to decide that issue. Either party has leave to seek such an order. [ 5 ] The Estate has now brought an application requesting an order bifurcating the issue of spousal status from the remainder of the relief claimed in the petition. The Estate also requests an order setting the issue of spousal status for pretrial settlement conference and costs. Ms.

Muller is opposed to the bifurcation and requests an order setting all matters down for a pretrial settlement conference. [ 6 ] The Estate’s position is that the spousal support status must be determined prior to there being any consideration given to the claim for property division.

In support of its position, the petitioner relies on Gamble v Gamble , 2006 SKQB 160 , 280 Sask R 226 [ Gamble ] and Provencher v Miller , 2011 SKQB 375 , 384 Sask R 143 [ Provencher ]. [ 7 ] McIntyre J. in Gamble determined that it was appropriate to first hear evidence and determine the validity of the interspousal contract before addressing the remainder of the family property issues. [ 8 ] In Provencher , Dufour J. noted at para. 2 : [2] This is an all or nothing case. Only spouses are entitled to spousal maintenance and a share of family property.

If Adrienne establishes that she was Chuck's spouse for even two of the seven years after the divorce then the machinery of The Family Property Act , S.S. 1997, c. F-6.3 and The Family Maintenance Act, 1997 , S.S. 1997, c. F-6.2 kick into gear and, on the facts here, Chuck will have to pay. If she fails, he does not. [ 9 ] He went on to state at para. 20: [20] Generally, the preference of our Court is to deal with all issues at once. For several reasons, however, it made sense to bifurcate this trial and that is what I did. First, it was evident that the issue of whether Adrienne was a spouse was a very live one.

Second, Chuck's finances are woven through a number of corporate entities and his net worth is apparently quite significant. Dealing with property division issues in this case would be an exceeding arduous and expensive undertaking. It would be dreadfully inefficient and expensive for the parties to retain accountants to plod through corporate financial statements and supporting documentation without even knowing when the purported spousal relationship began and ended.

This was a case where the interests of justice will best be served by first determining the threshold issue and, if necessary, move on to the financial issues at a later date. [ 10 ] In both Provencher and Gamble , the trial judge made the decision to bifurcate the trial to determine the preliminary issue of standing first. A second trial was to be held by the same trial judge respecting the property division if standing was established. A similar approach was taken by Tochor J. in Luther v Luther , 2019 SKQB 313 and by the writer in K.D. v C.K. , 2021 SKQB 92 [ K.D. ].

Tochor J. had to determine the validity of an interspousal contract prior to considering a property distribution. In K.D. the question of whether a limitation period had expired had to be determined before consideration could be given to a property distribution. There are undoubtedly countless other cases where trial judges have proceeded in that fashion. A trial judge controls his or her process. This matter, however, is not at the trial stage and the request to bifurcate is not being asked of the trial judge.

The Estate is asking for the matter to be bifurcated now, in advance of pretrial and well in advance of the trial in the hope of avoiding the costs to prepare for a trial respecting property distribution which would require costly appraisals both current and historical. The question is what authority exists for bifurcating the trial at this stage. [ 11 ] In Soiseth v Hill , 2021 SKQB 109 , Turcotte J. was called upon to consider a

summary judgment application respecting the validity of an interspousal contract which would impact the division of family property. The preliminary issue of whether the parties had a binding interspousal contract was addressed by way of

summary judgment application pursuant to Rule 7-2 of The Queen’s Bench Rules. [ 12 ] Another option is bifurcation pursuant to Rule 7-1. Popescul C.J.Q.B. noted in Reed v Dobson , 2017 SKQB 273 [ Reed ]: [19] Rule 7-1 contemplates a two-step process. First, one or more parties must apply for an order that a question or issue be heard or tried. The court then decides if the question or issue is appropriate for determination under this Rule. If it is, the court may accept the question defined by the parties, or may itself define the question or issue and the procedure to be followed.

Second, the court hears the issue so defined. See Venture Construction Inc. v Government of Saskatchewan , 2015 SKQB 70 , 470 Sask R 7 . [20] In deciding the first step of the two-step process, namely, whether the question or issue is appropriate for determination under this Rule, the court must perform a preliminary assessment as to whether separating an issue or issues from the main trial is just and would perform a useful purpose.

In doing so, the court should view Rule 7-1 through the lens of the Foundational Rules, and in particular Rule 1-3, which states that the purpose of the Rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost efficient way. [21] Both counsel referred to jurisprudence that had interpreted former Rule 188. That Rule, had limited application and permitted parties to have “points of law” decided where the facts were not in dispute.

To bring an application within the purview of former Rule 188, the parties were required to file an agreed statement of facts or accept the allegations of fact contained in the pleadings. See Markwart v Prince Albert (City) , 2010 SKQB 312 at para 30 , 368 Sask R 98 .

[22] In my view, Rule 7-1 is far more expansive and less restrictive than former Rule 188. Rule 7-1 does not require undisputablefacts and the issue or question to be determined is not restricted to points of law. Accordingly, the breadth of Rule 7-1 is considerablylarger than former Rule 188. [23] The judgment call that needs to be made here, quite simply, is whether a "hearing", by viva voce evidence or affidavit evidencein advance of the trial makes practical sense and would be fair to the parties.

That is, is it more likely than not that having the discreetissues determined in advance of the trial would save time and expense, be more convenient and not compromise fairness? This is often achallenging call to make in advance of a process since it is difficult to predict whether the severance of issues will shorten and simplify,or lengthen and complicate, the process.

Nonetheless, the court must use its best judgment, based upon the information before it, todecide whether to bifurcate in advance of the trial. [24] On the one hand, reading Rule 7-1, in light of Rule 1-3, provides a strong indication that courts should be willing to grantremedies that potentially provide a timely and cost efficient result without sacrificing fairness and justice. [25] On the other hand, the presumption has always been that the most efficient way to resolve an action is to decide all issues at oncein one trial or proceeding.

Experience has shown that sometimes an attempt to save time and money by splitting litigation up into smallpieces does not work. [13] The Estate has not referenced Rule 7-1 in its application. Nonetheless, the essence of the Estate’s request is for adetermination of a question of fact and law which, it is argued, will dispose of all or part of the claim, substantially shorten a trial andsave expenses.

Rule 7-1 permits a court to order a question or issue to be heard before trial in those circumstances. [14] Audet J. in Cohen v Cohen, 2019 ONSC 4456, 27 RFL (8th) 108 [Cohen] addressed the process to be followedwhen faced with a threshold question. The estate brought an application for bifurcation of the issue of the validity of a marriage contractarguing it was the just, expeditious and least expensive determination of this proceeding on its merits. Like Ms. Muller, Ms.

Cohenargued “that, contrary to the Estate's assertion that bifurcation would be efficient and promote resolution of these proceedings, bifurcationoffers minimal efficiencies in this case. It would, in her view, create a duplication of proceedings, would cause considerable delay, wouldincrease costs to all parties, and more importantly, would be prejudicial to her.” (para. 20) [15] Although the Ontario rules of court differ from our own, the considerations respecting whether bifurcation is appropriate remain the same.

Referencing Simioni v Simioni (2009), (ON SC), 74 RFL (6th) 202 (Ont Sup Ct)[Simioni], Audet J. in Cohen summarized the law in Ontario and concluded bifurcation was appropriate: [24] In that case, the court stated that its authority to bifurcate a proceeding ought to be exercised if convenient and if the exercise ofthe power would be in the interests of justice.

The interests of justice will be served if there are clear time and expense benefits to begained from the bifurcation and determination of the threshold issue, provided no real or meaningful prejudice is caused to either party.That case makes it clear that the moving party bears the onus of satisfying the court on a balance of probabilities that there would beclear time and expense benefits to be gained from bifurcation.

Once the moving party establishes that there is a clear benefit to be gainedfrom bifurcation in terms of time and expenses, the onus shifts to the opposing party to demonstrate through evidence that real prejudice outweighs any such expediency (Schulman v Ganz, 2015 ONSC 3254, 61 RFL (7th) 118. [25] The relevant factors that the court must consider, as set out in Simioni, are the following; (

i) Whether the issues for the first trial are relatively straightforward and the extent to which the issues proposed for the first trial areintertwined with those that will arise in the second; (ii) Whether a decision from the first trial will likely put an end to the action, significantly narrow remaining issues, or significantlyincrease the likelihood of settlement; (iii) Whether resources have already been devoted to all issues; (iv) Whether bifurcation would cause any delay; (

v) The advantages or prejudice the parties are likely to experience if the proceeding is bifurcated, and; (vi) Whether the severance is sought on consent or over the objections of one or more parties. [26] In Simioni, the court added the following caution: 16 Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far aspossible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowlycircumscribed and to be exercised in only the clearest of cases — in cases that exhibit the exceptional merit that calls upon the Court toexercise its inherent power: Courts of Justice Act,

section 138; Elcano, above; Carreiro (Litigation Guardian of) v. Flynn, [2004] O.J.No. 3117 (S.C.J.O.). In light of this caution, the onus necessarily lies upon the party seeking to bifurcate to satisfy the Court on a balanceof probabilities that if granted, severance will result in the "just, expeditious and least expensive determination of the proceeding on itsmerits".: Merck & Co. v. Brantford Chemicals Inc., 2004 FC 1400 , [2004] F.C.J.

No. 1704 (F.C.C.) at para 4. [16] Audet J. in Cohen went on to note that Simioni predated Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87 andthere is now a “culture shift away from the conventional trial in favour of proportional procedures tailored to the needs of the particularcase” (para. 27) and concluded: [30] In my view, considering if there are "threshold" issues in family law cases that once determined will facilitate resolution or saveresources requires a balancing act, and should not be reserved to the clearest of cases.

The judicial toolbox available to the court is largeenough to craft a procedure that will meet the needs of any given case, address the parties' concerns related to fairness, and promote the

primary objective of the Family Law Rules [O Reg 114/99 ], and the court should thrive to do so whenever possible. [ 17 ] Applying the principles set out above to the facts of the current application, the issues of the first trial are straightforward. Were the parties spouses as defined by The Family Property Act , SS 1997, c F-6.3 ? That issue is not intertwined with the issues proposed to be addressed in the second trial, should one be necessary. [ 18 ] If the Estate is successful and it is found the parties were never spouses, the matter is then at an end.

If the petitioner is successful and she is found to be a spouse, the likelihood of settlement increases as entitlement is then established. The parties have devoted limited resources to the issue of valuing property to date and, if the parties are found not to be spouses, those costs can be avoided altogether. [ 19 ] Bifurcation will cause delay but bifurcation is likely inevitable. The only question is whether bifurcation is ordered now and there is a trial of an issue pursuant to Rule 7-1 or whether it is ordered by the trial judge at the commencement of the trial.

It makes little sense for a judge or the parties to sift through valuations and assess exemption claims if the parties are not spouses. There are clearly advantages in proceeding by way of bifurcation as the cost of having valuations done to the property, both current and historical, may be avoided if the Estate is successful. There will be very little overlapping of evidence so the proceedings will not be duplicitous. [ 20 ] Counsel for the petitioner argues he is confident in his case.

He suggests establishing the spousal relationship will be a facile victory and the matter should not be side-lined or delayed by this issue. The question of the existence of a spousal relationship has already been the subject of debate and the materials filed, as noted by Robertson J., are conflicting. Neither Robertson J., nor I, can conclude the parties were spouses based on the affidavit evidence. Viva voce evidence is required to determine the matter. If Ms. Muller is found not to be a spouse, the matter is at an end. If Ms.

Muller is a spouse, meaningful property negotiations may ensue at pretrial, and failing settlement, the court will distribute property following a trial having regard to any exemption claims and with the aid of property evidence respecting values. The Estate’s suggestion that the question of whether the parties were spouses should proceed to pretrial and trial would be prejudicial to Ms. Muller as it would unduly increase delay as it would require scheduling both a pretrial date and a hearing date, as it is unlikely the parties can resolve the spousal relationship question by agreement.

Furthermore, the request to bifurcate and

schedule two separate pretrials is also not justified by The Queen’s Bench Rules . The Rules and the facts of this case do, however, justify scheduling a viva voce hearing to determine the issue. [ 21 ] In accordance with Rule 7-1, I am satisfied that a finding respecting the status of the parties’ relationship may dispose of the claim or significantly increase the likelihood of settlement and a trial of the issue is appropriate. To use the words of Popescul C.J.Q.B. in Reed , a hearing on the threshold issue “makes practical sense and would be fair to the parties ” (para. 23) . The Local Registrar is directed to

schedule a viva voce hearing to determine the question as to whether Ms. Muller and the deceased were spouses as defined by The Family Property Act . I will remain seized with this matter for purposes of case management should that be necessary and a telephone conference call may be requested through the Local Registrar. [ 22 ] Costs of this application shall be determined by the hearing judge. Ms. Muller’s request to have the matter proceed to pretrial is adjourned sine die to be returned on seven days notice and can proceed once the threshold question of whether the parties were spouses is ruled on by the hearing judge. J. C.M. RICHMOND