Appeal to proceed on whether judge wrongly made family property order in distinct estate matter

The Alberta Court of Appeal permitted the former wife of a deceased party to appeal on the issue of whether a judge committed a legal error in granting a family property procedural order at a pretrial conference in an estate proceeding. 

In Lalonde v Waddell, 2026 ABCA 87, the parties married and had a son named Scot. The wife had another son named Geoffery. The parties separated in July 2022. 

In a family property action, the applicant ex-wife brought an action for a divorce and property division. 

In November 2023, the respondent ex-husband died intestate. In December 2023, the Alberta Court of King’s Bench allowed the ex-wife to administer her ex-husband’s estate property. 

Before the Court of King’s Bench, the ex-wife, as the estate’s personal representative, filed an estate action seeking to recover property previously owned by her ex-husband and transferred to Scot and Geoffery. The court set the trial in the estate action for Feb. 18–19, 2026. 

Last January, at a pretrial conference in the estate action, a judge raised questions about the status of the family property action, without prior notice to the parties. 

As the couple had been living apart at the time of death, the pretrial judge determined that the property division under Alberta’s Family Property Act, 2000, in the family property action should be final before the estate property distribution could proceed via the estate action. 

On her own initiative, the judge issued procedural orders. In the family property procedural order, the judge set timelines to manage the family property action, deadlines to disclose specific information, and dates for the parties to share their stances on certain issues, including whether to replace the ex-wife with Scot as the estate’s legal representative. 

The ex-wife successfully applied for permission to appeal and to extend the time to seek permission to appeal under rr. 13.5 and 14.5(1)(b) of the Alberta Rules of Court, Alta Reg 124/2010. 

Permission granted

The Court of Appeal of Alberta ruled that the ex-wife met the test for permission to appeal. First, the appeal court found an important legal question. 

The appeal court pointed out that the pretrial judge’s decision suggested that a surviving but separated spouse would not benefit from s. 61 of Alberta’s Wills and Succession Act, 2010, regardless of the separation’s duration. 

The appeal court added that the judge’s direction that, as a matter of law, the family property action should be complete before the transfer of estate property through estate administration had broad implications for the efficiency of and procedures applicable to family property and estate matters. 

The appeal court also saw a procedural fairness issue with broad implications. The appeal court noted that: 

• The family property procedural order arose in a pretrial conference for the estate action, not in the family property action 
• The ex-wife’s counsel in the estate action, who did not receive notice that the pretrial conference would address issues concerning the family property action, told the judge that she did not have that file with her 
• The judge accepted that she had “sprung” the family property issues on everybody, but explained that she wanted “to look at the big picture” 

The appeal court found that the two actions affected different parties and potentially involved distinct subject matter, including the property transfers to the sons. 

Second, the appeal court saw a reasonable chance of success in the ex-wife’s proposed appeal. The appeal court held that the ex-wife raised arguable issues about: 

• the interpretation and operation of ss. 61 and 63 of the Wills and Succession Act 
• the judge’s alleged error in finding the estate “entitled” to run the family property action to a conclusion, leading to a direction preventing the transfer of properties until a further court order 
• procedural fairness 

Third, the appeal court held that the delay arising from an appeal would neither unduly interfere with the family property action’s progress nor unduly prejudice the parties without a proportionate benefit. 

Extension granted

The appeal court exercised its discretion to extend the time to seek permission to appeal upon finding that the ex-wife substantially satisfied the factors in Cairns v. Cairns, 1931 CanLII 471 (AB CA). 

The appeal court determined that the ex-wife: 

• did not benefit from the family property procedural order 
• demonstrated a bona fide intention to appeal that order within the required period 
• showed a continuing intention to pursue the appeal 
• explained her failure to obtain permission to appeal within the deadline, given that she had relied on her counsel, who had mistakenly believed that permission to appeal was unnecessary for this matter 

The appeal court concluded that the delay did not significantly prejudice the parties or the estate.