Dell v Dell, 2017 MBCA 34

Citation: Dell v Dell, 2017 MBCA 34 Date: 20170316 Docket: AF16-30-08601 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN: BRENDA JEANNE DELL ) R. H. Johnston, Q.C. ) for the Appellant ) (Petitioner) Appellant ) P. L. Fraser ) for the Respondent- and - ) ) Appeal heard:GORDON WESLEY DELL ) December 5, 2016 ) ) Judgment delivered: (Respondent) Respondent ) March 16, 2017 PFUETZNER JA [1] The petitioner (the wife) appeals the motion judge’s decision to grant a divorce by way of

summary judgment underthe Manitoba, Court of Queen’s Bench Rules, Man Reg 553/88 (the QB Rules), r 20.01. The wife also takes issue with the motionjudge’s costs order. Background [2] The facts are not complex. The respondent (the husband) and the wife were married for 30 years. All of theirchildren are adults and are financially independent. The husband and wife have now been separated for over 13 years. [3] About six years ago, the wife filed a petition for divorce and for corollary relief, including spousal support and anequalization of family property.

The husband filed an answer in which he consented to the divorce and to some of the other relief. Hedid not include his own petition for divorce in his answer (see QB r 70.07(2)). [4] The petition languished for some time while attempts were made to settle the support and financial matters. Eachspouse lays some of the blame for the delays in reaching a settlement at the feet of the other. [5] In 2015, the husband brought a motion under QB r 5.05 to sever the divorce from the balance of the relief pled in thepetition. The Master granted the motion to sever.

The wife did not appeal the order of the Master. [6] The husband then brought a motion for

summary judgment in respect of the divorce, which was granted by the motionjudge. It is from this judgment that the wife appeals. Standard of Review [7] The wife argues that the standard of review is that this Court is entitled to intervene where the motion judge’s decisionis plainly wrong or based on an error in principle. The wife relies on this Court’s decision in Friesen v Friesen (1996), (MB CA), 113 ManR (2d) 192 (CA), which I would note deals with the standard of review applicable to a decision to sever thedivorce from other relief and not to a motion for

summary judgment. [8] In my view, the applicable standard of review is that which this Court has repeatedly held to apply to motions forsummary judgment. In Shachtay v Shachtay, 2013 MBCA 17, 288 ManR (2d) 241, this was explained as follows (at para 7):

The granting or denying of a motion for

summary judgment is an exercise in judicial discretion and a judge’s order on such a motion canonly be set aside on appeal upon a finding of misdirection on the law or the facts or unless the decision is so clearly wrong as to yield anunjust result (see Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81 at paras. 24-28, (2009), 245 Man.R. (2d) 70.

Position of the Wife [9] The wife argues, for the first time at the hearing of the appeal, that the motion judge lacked jurisdiction to grantsummary judgment to the husband on the wife’s petition for divorce on the basis that a defendant or respondent may only move forsummary judgment dismissing all or part of a claim in the statement of claim or petition and, as a result, the order of the motion judgeshould be set aside. [10] Aside from the jurisdictional issue raised, the wife states that, on the

summary judgment motion for divorce, there wasno genuine issue for trial and that the granting of

summary judgment is mandatory once the motion judge is satisfied that there is nogenuine issue for trial. However, she argues that the motion judge retains a residual discretion not to grant a divorce by

summaryjudgment where there are genuine issues with respect to other parts of the petition, such as corollary relief, or if the granting of thedivorce will result in an injustice or disadvantage to one of the spouses. The wife submits that the granting of a divorce will disadvantageher in dealing with the outstanding support and financial matters by giving the husband the “tactical advantage” of no longer havinganything further to gain from the litigation.

The wife argues that the motion judge did not give proper weight to this consideration. [11] As for the motion judge’s costs order, the wife’s position is that the husband should have been penalized for effectivelyamending his notice of motion during argument by withdrawing one of his requests for relief. Husband’s Position [12] On the jurisdictional issue, the husband argues that this Court can deal with his technical non-compliance with the QBRules by dispensing with strict compliance with the QB Rules, as was done by this Court in Schimnowski v Schimnowski Estate et al(1996), (MB CA), 110 ManR (2d) 146 (CA).

In addition, this Court could grant an order under QB r 2.01(1)(a),effective the date of the

summary judgment motion, granting an amendment to his answer to include a claim for divorce. [13] On the remaining issues, the husband submits that the motion judge made no errors in granting the divorce by way ofsummary judgment or in her award of costs. Analysis and Decision [14] I will deal with the jurisdictional issue first. The husband moved for a divorce by way of

summary judgment under QBr 20.01, the relevant parts of which state as follows: Available to plaintiff 20.01(1) A plaintiff may, after the defendant has filed a statement of defence or served a notice of motion, and at any time prior to theaction being set down for trial, move before a judge with supporting affidavit material or other evidence for

summary judgment on all orpart of the claim in the statement of claim. Available to defendant 20.01(3) A defendant may, after filing and serving a statement of defence, and at any time prior to the action being set down for trial,move before a judge with supporting affidavit material or other evidence for

summary judgment dismissing all or part of the claim in thestatement of claim. [15] The QB Rules only permit a defendant to obtain

summary judgment dismissing all or part of the claim. Thus, adefendant would not be able to obtain any other relief (except costs) on

summary judgment, even if that relief formed part of the claim. Likewise, while QB r 20.01 is, in principle, available in a family proceeding, including to obtain a divorce (see, for example, Heon vHeon (1988), (ON CA), 34 OAC 70 at paras 9, 11; Kornberg v Kornberg (1991), (MB KB), 74ManR (2d) 179 (QB), aff’d (MB CA), 76 ManR (2d) 287 (CA); Desjardins v Desjardins (1993), (MB KB), 89 ManR (2d) 140 at paras 8-15 (QB); Pow v Pow, 2005 MBCA 1 at para 11; and MC v RP, 2009 PECA 15 at paras 16-24), arespondent who has not claimed a divorce would not be able to obtain a

summary judgment divorce based on a petition filed by thepetitioner. [16] In this case, the wife claimed a divorce in her petition for divorce, but the husband filed only an answer in which heconsented to the wife’s claim for a divorce. He did not, himself, claim a divorce, although he could have done so under QB r 70.07(2) byfiling an answer and petition for divorce. Nor did he apply under QB r 26 to amend his pleading with leave of the court. [17] The wife relies on the wording of QB r 20.01(3) to argue that the motion judge had no jurisdiction to grant thehusband’s motion.

As a result, the wife argues that the order should be set aside. [18] Relevant to this issue is QB r 2 which states, in part:

Not a nullity 2.01(1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court, (

a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or (

b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part. . . . 2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time. [ 19 ] A similar issue arose in Schimnowski . A third party, who had not filed any defence, successfully moved for

summary judgment dismissing the re-amended statement of claim and third party claim as against it. For the first time on appeal, the plaintiffs argued that only a plaintiff or defendant could apply for relief under QB r 20.01 and that, because the third party had not filed a defence at the time that the

summary judgment motion was heard, it was not entitled to any relief. The Court noted that the third party had filed the required statement of defence prior to the appeal hearing. [ 20 ] The Court dismissed this ground of appeal, stating (at para 13): This ground of appeal is without merit. No challenge to the standing of the third parties to move for

summary judgment was put before the motions court judge. The argument is advanced for the first time in this court. It raises at most an irregularity, and there is no evidence of prejudice to the plaintiffs. Queen’s Bench Rule 2 empowers the court, where necessary and in the interest of justice, to dispense with compliance with any rule. This is clearly a case in which that rule should be applied. [ 21 ] As in Schimnowski , the failure of the husband to amend his answer to claim a divorce is, at most, an irregularity and there is no evidence of prejudice to the wife. She had notice of the husband’s motion for a

summary judgment divorce, the motion was fully argued on its merits and the wife did not raise the issue of his lack of standing to proceed either at the hearing or as a ground of appeal. It only arose during oral argument at the appeal hearing.

The only prejudice that the wife asserts relates to her claim for corollary relief, which is the subject of the second ground of appeal and which is dealt with later in these reasons. [ 22 ] There is no basis upon which to conclude that, because of the husband’s failure to amend his answer in accordance with the QB Rules , it is necessary in the interests of justice to set aside the motion judge’s order.

Although I would make it clear that the husband should have sought leave to amend his answer, in the circumstances of this case, the interests of justice require that compliance with the QB Rules be dispensed with, as was done by this Court in Schimnowski . See also Triple D Land & Cattle Inc v Dyrda et al , 2010 MBCA 5 ; and

section 36 of The Court of Appeal Act , CCSM c C240. I have no hesitation in concluding that, if this issue had been raised before the motion judge, she would have granted leave to the husband to amend his answer to claim a divorce. [ 23 ] In addition to arguing that the motion judge’s order should stand, the husband requested that he be granted leave to amend his answer, retroactive to the date of the

summary judgment motion, to include a claim for divorce. [ 24 ] While QB r 2.01(1)(

a) gives jurisdiction to “grant all necessary amendments . . . to secure the just determination of the real matters in dispute”, QB r 2 must be read in conjunction with section 93(1) of The Court of Queen’s Bench Act , CCSM, c C280 (the QB Act ), which states: No rules to conflict with

an Act 93(1) Nothing in

section 92 authorizes the making of rules which conflict with

an Act of the Legislature, but rules may supplement the provisions of

an Act. [ 25 ] Section 93(1) of the QB Act was explained and applied by this Court in Canadian Reform Conservative Alliance Party Portage-Lisgar Constituency Association v Harms et al , 2003 MBCA 112 , 177 ManR (2d) 251. In essence, a rule which has the effect of altering substantive law must be limited to matters of court practice and procedure, or the rule will conflict with section 93(1). [ 26 ] Subsequent cases have applied this reasoning to prohibit an otherwise valid QB Rule from being used in a manner that would conflict with substantive law.

A frequent example is the refusal of courts to grant a retroactive order that would have the effect of overcoming the expiration of a statutory limitation period. See Orzechowski v Bass et al , 2012 MBQB 159 , 279 ManR (2d) 189; and Ben-Ron Farms et al v The Canadian Wheat Board , 2012 MBQB 188 , 281 ManR (2d) 49.

[ 27 ] In Hunter v McCorriston , 2016 SKCA 144 , the Court of Appeal of Saskatchewan reversed an order allowing a husband to file, several months after the spouses’ divorce, a counter-petition claiming an equal division of property under The Family Property Act, SS 1997, c F-6.3 (the Saskatchewan Act ). The Court concluded that the order did more than cure a procedural defect but affected substantive law because, under the Saskatchewan Act , only married spouses could apply for an equal division of property and the parties were no longer married. [ 28 ] To be effective, the amendment requested by the husband in this case would have to be made retroactive to the date of the motion for

summary judgment. Unlike the situation in Hunter , there is no substantive law that would bar the husband from filing an answer claiming divorce. Granting the amendment on a retroactive basis would not overcome a statutory limitation period, nor would it affect other substantive law relating to the availability of a divorce in the circumstances. [ 29 ] Therefore, I would grant the husband leave under QB r 2.01(1)(

a) to amend his answer, within 30 days, to claim a divorce and, upon filing, the amendment will be effective the date of the

summary judgment motion. [ 30 ] Turning to the remaining issues, the wife cited several cases for the proposition that a judge retains a residual discretion not to grant divorce by way of

summary judgment if to do so would result in an injustice or disadvantage to one of the parties. Nearly all of these cases dealt with the discretionary decision to allow severance of the divorce from the remaining relief or dealt with a motion for

summary judgment for divorce where the divorce had not already been severed from the other relief. [ 31 ] The considerations on a severance motion, and on a motion for

summary judgment for divorce once severance has already been ordered, are different. [ 32 ] Severance is not available as of right, but is a discretionary remedy, the availability of which is dependent on the facts. See , for example, Desjardins ; KAS v CDS , 2004 MBQB 258 , 191 ManR (2d) 69 ; Winstanley v Winstanley , 2009 MBQB 41 , 237 ManR (2d) 182 ; and Senger v Rawana , 2010 MBQB 57 , 249 ManR (2d) 272 . In this case, t he severance order was not appealed and the question of whether it was made in error is not before us. [ 33 ] Once the divorce has been severed from the other relief claimed in the petition and a

summary judgment motion brought for a divorce only, the rules applicable to the granting of

summary judgment apply. Pursuant to QB r 20.03(1), the motion judge shall grant the

summary judgment divorce “where the judge is satisfied that there is no genuine issue for trial with respect to a claim”— in this case, for divorce—provided that the other legal requirements for granting a divorce under the Divorce Act , RSC 1985, c 3 (2nd Supp), have been met. These requirements include that there exist grounds for the divorce ( Divorce Act, section 8(1)), that the court is satisfied that there is no possibility of reconciliation ( Divorce Act,

section 10) and that there are no bars to the divorce ( Divorce Act,

section 11). See Pow at paras 5, 11 . Given the severance order in this case, issues related to the corollary relief, which would be relevant on the severance motion, are not relevant to whether the divorce should be granted. [ 34 ] In this case, it was open to the motion judge on the evidence before her to grant the divorce. Indeed, the only real objection raised by the wife, being that divorce would give the husband a “tactical advantage” in the severed corollary relief proceedings, is completely irrelevant in light of the severance. Claims of prejudice are to be argued at the severance stage.

The failure of the wife to appeal the severance order, in the circumstances of this case, made the granting of the severed divorce virtually inevitable. I am far from persuaded that the motion judge misdirected herself or that her decision was so wrong as to amount to an injustice. [ 35 ] The wife’s argument on costs has no merit. The position advanced on appeal was not argued before the motion judge.

In his costs submissions on the motion, counsel for the wife stated, “My Lady, costs obviously should follow the success and I would respectfully suggest the tariff would be applicable.” The motion judge accepted this submission and ordered tariff costs payable by the wife. There is no basis to intervene with this discretionary decision. [ 36 ] I feel I must make one final comment on proportionality. Issues of access to justice and proportionality affect all participants in the justice system. Counsel should bear these principles in mind when dealing with proceedings at all stages.

In this case, several of the arguments raised by counsel had no merit, were extremely technical and merely increased the cost of the proceedings to the parties. I would strongly discourage counsel from raising, for the first time on appeal, issues involving defects in pleadings that are technical only and which have no bearing on the merits of the case. [ 37 ] I would dismiss the appeal with costs. JA I agree: JA I agree: JA