Focus On

Family Law - Marital property - Practice and procedure

Thursday, December 08, 2016 @ 7:00 PM  


Appeal by the wife from an order granting the husband leave to bring a counter-petition for equal division of family property and the family home. The parties married in 2002, separated in 2013 and divorced in 2014. They had three children. Prior to marriage, the parties executed a prenuptial agreement that provided for the family home to go to the wife upon dissolution of the marriage. The agreement also provided that each party retained their own property brought into the marriage, including any increase in value. In 2014, the wife commenced a petition for divorce and sought relief related to the parties’ children. She cited the prenuptial agreement in respect of issues related to family property. In 2015 following the divorce order, the husband filed a notice of application seeking leave to advance a claim for equal division of family property and the family home. The supporting affidavit indicated a desire to challenge the prenuptial agreement. He relied on Rule 1-6 of the Queen’s Bench Rules. The chambers judge granted leave for the husband’s application to proceed on the basis the husband’s failure to file a counter-petition was a mere formality that did not give rise to a procedural irregularity. The wife appealed.

HELD: Appeal allowed. The chambers judge erred in finding Rule 1-6 applied in the circumstances. Once a marriage was terminated by way of divorce, a spouse was unable to advance a claim for division of property under the Family Property Act. Rule 1-6 was not available to cure non-compliance with substantive law or a failure to exercise a statutory right. Although the validity of the prenuptial agreement was at issue between the parties, it was not put at issue before the courts. The wife made no family property claim in her divorce petition. The order permitting the husband to proceed could not be sustained on the basis of the Court’s inherent jurisdiction to control its own process. In addition, the chambers judge improperly admitted privileged and confidential settlement communications in support of the ruling by misconstruing the nature of the privilege. The order below was set aside and the husband’s application for leave to file a counter-petition was dismissed.