It’s a recurring theme that lawyers often address – whether an order of the Court is interim or final in nature. While it is usually clear and understood in any application whether the Court is making an interim or a final order, it is not always the case that this is specifically clarified on the record. It can be to a litigant’s advantage, depending on their success or failure in the application, whether an order is final or interim. This is because an interim order is intended to be just that – temporary pending a fuller hearing on the merits; an Order that will be revisited and provide the unsuccessful litigant on the interim order with another chance at securing their relief. A final order is intended to be final in nature, subject to a limited right to vary the order, depending on the subject matter, and whether a litigant is able to demonstrate that there has been a material change in circumstances since the original final order.
These issues as to whether an order is final or interim in nature often arise in the context of child and spousal support and most significantly in parenting disputes.
The Court has historically taken the position that a final order should not be granted unless a matter has proceeded to trial, or at the very least proceeded by way of an oral hearing. But, the Court has also clarified that, while this is the normal procedure, at least in matters under the Family Law Act the Court is not constrained to only making interim orders on proceedings that do not proceed by way of trial or oral hearing. In fact, the Court has held that on Family Law Act matters, the Court could theoretically resolve such matters on a final basis on the first hearing of the matter, in the absence of any trial.
This was explained in the case of Hartley v. Del Pero, 2010 ABCA 182 by the Court of Appeal. The Court specifically cites the then Rule 580.7, which gave the Court the discretion, when dealing with an FLA matter to:
(a) decide all or part of the matter,
(b) adjourn all or part of the matter to a later date, or
(c) set all or part of the matter down for a short oral hearing
and the Court may give any direction and grant any interim or procedural order the Court considers appropriate.
This Rule was carried over into the 2010 Alberta Rules of Court at 12.51, where it remains in nearly identical form.
This rule, while contemplating trials and short oral hearings being available, and also specifically mentioning the availability of interim, pretrial orders, does not foreclose the possibility of a Court, in an application under the FLA, from granting final relief in a hearing that is not a proper trial. This is clearly seen by the wording of the Rule, in that the Court has the discretion to “decide all or part of the matter” or “set all or part of the matter down for a short oral hearing or trial.” The availability of both of these options presumes that the Court does not have to set a matter for trial, but can decide the matter, on a final basis, without it advancing to trial.
Notwithstanding that the Court in Hartley stated that chambers hearings should not be a substitute for trials, particularly where credibility issues existed, the Court nonetheless recognized that the option does exist for the Court to grant a final order without the need for a trial.
More recently, however, the Court of Appeal issued the decision of Linder v. Botterill, 2018 ABCA 126, wherein the parties were in disagreement over whether a parenting order originating from a Chambers hearing was interim or final in nature. In deciding the matter, the Court stated that notwithstanding that the material facts were not in dispute, a final parenting order was not available as the matter had been heard in morning chambers.
In support of this, the Court referenced Rule 12.48 of the Alberta Rules of Court wherein it sets out that an application for summary judgment is not available in FLA matters. The Court further stated that parties have the right to insist that their matters under the FLA be heard by way of trial pursuant to Rule 12.51.
As a matter of interpretation, this decision of the Court of Appeal raises some interesting questions. As set out above, the Court of Appeal, in Hartley held that, theoretically, the Court has the discretion to decide FLA matters on a final basis without a trial being held, such as in a Chambers hearing, as a result of Rule 12.51(a). However, the same Court in Linder has recently held that final order in FLA matters are not available in Chambers hearings, as a result of Rule 12.48 prohibiting applications for summary judgment in FLA matters.
The finding in Linder appears to suggest that Rule 12.48 supercedes and perhaps invalidates the discretion of the Court to decide FLA matters summarily pursuant to Rule 12.51(a). However, this cannot be the right interpretation.
Rule 12.48 is clear that “[d]espite Rule 7.3, an application for summary judgment is not available in a proceeding under the Family Law Act”. Firstly, the specific wording suggests that an application for summary judgment is not available, not that the Court cannot, on its own volition, should it feel justified, decide a matter under the FLA summarily. Further, Rule 12.48 specifically cites Rule 7.3 – the Rule that permits for applications for summary judgment under civil actions. Taken together, it could be seen that Rule 12.48 is suggesting that in FLA matters, litigants do not have the right to apply for summary judgment pursuant to the provisions in Rule 7.3.
This would not indicate that summary judgment is not available, but simply that litigants in FLA matters cannot apply for summary judgment under Rule 7.3.
However, as Rule 7.3 grants a positive right to litigants to apply for summary judgment (subject to specific conditions), in the absence of the availability of the this Rule, it would be presumed that summary judgment is not available in FLA matters.
However, we then have to return to Rule 12.51. If the Court in Linder is to be understood, the provisions in Rule 12.51 do not only give the Court the discretion to make a number of decisions in respect of addressing FLA matters, but also gives litigants the right to request the relief pursuant to the options set out in Rule 12.51. This would flow from the comment of the Court where it stated that the mother in Linder had the right to insist that the parenting matter be determined by way of trial pursuant to Rule 12.51.
Given the Rule 12.51 also permits the Court to decide an FLA matter on a final basis without a trial, it would then follow, from Linder, that litigants would also presumably have the right to insist that a matter be determined on a final basis in the absence of a trial.
Such an interpretation would not contradict the prohibition against summary judgment under Rule 12.48, as 12.48 would appear to only prohibit applications for summary judgment in FLA matters under the procedure of Rule 7.3. Rather, litigants instead have the alternative option of requesting a the Court to use their discretion to decide an FLA matter summarily under Rule 12.51.
As a result, a Court may still hold that, in any given case, it would be inappropriate to make a final decision in the absence of a trial, but the discretion to grant a final order, if the circumstances warranted, would not be abolished as it appears to be understood in Linder.