New Rules of Court Interpreted: Rule 12.48 and Summary Judgment in Divorce Proceedings

Case commented on: Maykowski v. Maykowski, 2011 ABQB 31

This case is described by Justice D.C. Read as “high-conflict divorce proceedings” commenced by the husband in combination with a claim for matrimonial property division, and in which the wife counterclaimed for divorce and distribution of matrimonial property. The wife sought summary judgment based on an alleged settlement agreement between the parties concerning the divorce and matrimonial property. Justice Read held that summary judgment was not available, based on an interpretation of Rule 12.48 of the new Alberta Rules of Court, Alta. Reg. 124/2010. According to Justice Read, “It is patently clear from R. 12.48 that summary judgment is not available in any action under the Divorce Act. Although summary judgment is available in proceedings under the Matrimonial Property Act, if the action was commenced as a combined proceeding with the Divorce Act, because of R. 12.48(b), a summary judgment application under the Matrimonial Property Act can be made only after that action has been severed from the Divorce Act proceedings.” (at para. 16). Because the alleged settlement agreement dealt with claims made under the Divorce Act related to child custody, child and spousal support in addition to matrimonial property claims, summary judgment was not available (at para. 19). Justice Read noted that this would also have been the outcome under the old Alberta Rules of Court, Alta. Reg. 390/1968, Rule 159, but noted that the exclusion has been outlined in more detail in the New Rules (at para. 15). Justice Read ordered the parties to proceed immediately to alternative dispute resolution, and if unsuccessful there, to trial (at para. 31).