Dismissal for Long Delay? How Courts Apply Rule 4.33 of the Alberta Rules of Court in the Case of Divorce and Property Division

Karin Webster and Skylar Caldwell

In Alberta, Courts have authority to dismiss an action for long delay upon application pursuant to Rule 4.33 of the Alberta Rules of Court[1] (the Rules). Except in certain circumstances, Rule 4.33(2) provides that the Court must, upon application, dismiss an action if there has been no significant advance in an action for 3 years or more.

In the decision Brost v. Kusler[2], the Alberta Court of Appeal confirms that the three-year period in Rule 4.33 applies to divorce and matrimonial proceedings. However, the limitation period for making a claim to equalize a former couples’ property set out in section 6(1) of the Family Property Act[3] (the Act) states that a spouse must commence an application for a family property order within 2 years after the date a divorce is granted.

Once this limitation period has passed, the spouse is barred from making an application for property division. However, there is no limitation period on filing a Statement of Claim for Divorce. The interaction of Rule 4.33 and subsection 6(1) of the Act raises confusion as to whether the Court will dismiss an application for property division under Rule 4.33 if there has been no material steps made in the action for 3 years, but there has been no divorce. If the Court were to dismiss an application for property division under Rule 4.33, but the claim still fell within the limitation period under subsection 6(1) of the Act, subsection 6(1) appears to have the effect of allowing the applicant to initiate a new application for property division.

To alleviate some of this confusion, Alberta Courts historically have decided not to dismiss applications for reason of long-delay if the matter still falls within the applicable limitations period. This is because, in such circumstances, there is nothing that bars the Applicant from commencing a new action based on the same matter and dismissing the application would lead to unnecessary expense and delay with no resulting benefit.

An example of this is the 2021 Alberta Court of Queen’s Bench (the ABQB) decision in Soriano v. Bacalla[4]. In that case, Spouse 1 filed a Statement of Claim for Divorce on August 26, 2014. In response, Spouse 2 filed a Statement of Defence on October 22, 2014 and sought child and spousal support. ¬†After nearly six years of no material steps being taken by either party to advance the action, Spouse 1 applied to dismiss Spouse 2’s claim for support for long delay under Rule 4.33 on March 15, 2021. Although the ABQB ultimately accepted that neither party had taken any steps to advance the action in nearly six years, the Court chose not to dismiss the claim for delay. In making its decision, the Court stated that a dismissal for delay does not prevent a party from commencing a second action for the same cause if he or she is within the applicable limitation period or no limitation period applies to a particular claim. The ABQB further specified that, in such a situation, dismissal of the first action would serve no useful purpose and instead could add to cost and further delay.

[1] Alta Reg 124/2010, at Rule 4.33.
[2] 2016 ABCA 363
[3] 2000 R.S.A., c. F-4.7, at ss. 6(1).
[4] 2021 ABQB 195.

As this blog post may indicate, family law matters fall into a unique category of law under which the typical Rules used in other areas of law don’t always apply. If you have any questions regarding the topics of property division, divorce, or otherwise, we recommend reaching out to our expert family law practice group who would be happy to help you navigate your legal problems.