Going through a divorce can be a very difficult process. While many desire an efficient and satisfactory outcome, this is not always true. Family law cases can go on for extensive periods if the issues are complex or the parties do not agree on several matters. If the parties proceed through litigation, it may take a long time for the matter to reach trial as there are often many matters before the court. Divorce proceedings can be uncomfortable, so many choose to leave the matter for a later time. However, if a party is not making advances to their family law litigation, their case can be dismissed for lengthy delays. Therefore, seeking legal advice proactively to avoid these issues is important. 

This case will explore when a delay may lead to a family law action being dismissed. Through the case of Denis v. Palmer, 2021 ABQB 786, we will examine how the court may consider a delay in moving a family law action forward. This post will provide helpful insights for parties to a family law proceeding, as it will describe the consequences for delaying a family action from moving forward and explain situations where a family law action could be dismissed for delay. These takeaways will assist parties in being proactive about their family law claims. 

What is considered a delay in advancing a family law action?

When a family law proceeding has begun and is moving through the court system, it will be governed by the Alberta Rules of Court. Division 6 of the Rules discusses what can happen if there has been a delay in a family law action. In particular, under s. 4.31, a court can dismiss all or any part of a claim if the delay has led to significant prejudice against a party. If the delay is considered inordinate and inexcusable by the court, the delay is presumed to have significantly prejudiced the party seeking to dismiss the claim. 

When deciding whether or not to dismiss a family law claim due to delay, the court must also consider whether the party seeking dismissal participated in or contributed to the delay. For example, the delay may arise from a lack of response to disclosure requests necessary to move the action forward. If the party seeking dismissal failed to disclose their financial information promptly, then the court may consider this a factor. 

Exceptions to consider

Generally, the court must dismiss an action if 3 or more years have passed since the last significant advance by one of the parties. There are exceptions, however, including the following:

  1. If the action has been stayed or adjourned by court order, or the delay is provided for in a litigation plan; or 
  2. If an application has been filed since the delay, and the party seeking dismissal of the action had participated in them such that a court decides the action should continue; 

If the court refuses to dismiss the action due to delay, the court can make procedural orders to move the action forward. 

The following time periods are not part of the calculation of 3 years:

  1. The time between serving the statement of claim and the statement of defence;
  2. The period of one year after the date of service of a statement of claim on the party seeking to dismiss the action; 
  3. An agreement in writing between the parties specifying a period of time that will not be included in the calculation. 

On the third point, the party who is seeking to continue the action can serve a written proposal on the other party, setting out a suspension period that would not be included in calculating the 3 years. If a party receives such a proposal, they are required to reply within 2 months, either agreeing or disagreeing, if there is no response, then the party seeking the suspension period can make a court application to obtain an order stating that the proposed suspension period is not included in the calculation. 

What is considered a significant advance in a family law action?

A significant advance in litigation is a step that moves it forward meaningfully, given the nature, value, importance, and quality of the step. The court will also consider the genuineness and timing of the steps taken. In particular, the focus will be on how the step affects the litigation rather than what form it takes, for example, filing a formal court statement. However, a formal statement filed with the court is often considered to significantly advance the action because it may clarify issues being addressed. 

What are the factors the court will consider to decide if a case should be dismissed for delay?

As the court’s decision to dismiss an action due to delay highly depends on the facts of the case in question, it is helpful to look at an example to see how the factors are applied. In the Denis case, the husband applied for the wife’s claims to be dismissed for lengthy delay. The parties had a short marriage. They married in October 2014 and separated in April 2015. Their divorce was granted in 2016. Throughout the litigation, the wife was self-represented. The wife sought spousal support and set aside a cohabitation agreement

The action commenced in April 2015. Later, in December 2017, the wife made her claims for spousal support and setting aside the cohabitation agreement. The husband filed his responding affidavit in January 2018. Then in May 2019, the deciding judge was appointed as Case Management Justice, who ordered that any self-represented litigant (i.e. the wife) was required to seek leave from the court before bringing forward a new application or hearing. In 2019, she was not granted leave to proceed. 

The judge later discovered that in late November 2017, another judge gave the wife leave to file her applications for spousal support and set aside the cohabitation agreement within 3 years of filing her Statement of Defence and Counterclaim. Therefore, the court found that the 3-year threshold was not proven, and the application to dismiss the action due to delay was unsuccessful. In particular, the court noted that the wife was a self-represented party, and judges were required to ensure a fair and impartial process for self-represented litigants who were at a disadvantage. 

Mincher Koeman Lawyers in Calgary and Canmore Can Help You Move Your Family Law Claims Forward Efficiently

Parties to a family law proceeding risk having their claims dismissed if they delay taking any significant steps to advance the action. To avoid issues arising from delaying a family law claim, you should speak with one of our family law lawyers at Mincher Koeman, who are experienced in proactively moving family law proceedings forward. Our Calgary and Canmore family lawyers are dedicated to finding the best resolution for you after your divorce.

To book a consultation with one of our lawyers, please contact us online or by phone at 403-910-3000.

A team above all. Above all a team.

Calgary Office

707 7 Ave SW #1300,
Calgary, AB T2P 3H6

Canmore Office

621 10 St #101
Canmore, AB T1W 2A2

Website designed and managed by Umbrella Legal Marketing