Alberta Court of Appeal upholds interim spousal support order despite 'rough justice'

The Alberta Court of Appeal has upheld an interim spousal support order despite its nature, frequently resulting in what a chambers judge called "rough justice."

In Rutter v Rutter, 2024 ABCA 11, Todd Rutter challenged an interim spousal support order for $5000 monthly payable to his wife, Glenda Rutter. The couple, who were together for 27 years and married for 24, separated in June 2022. They had two children, ages 21 and 19, the younger one living with Glenda.

Glenda Rutter, a former nurse, received a monthly stipend of $2,200 through the workers' compensation system due to Covid-related health issues. On the other hand, Todd Rutter contributed to various aspects of Glenda's financial support, including $1500 in spousal support, $944 per month for a vehicle, and $75 per month for a cell phone.

Todd is a businessman operating a successful specialty tire business. His annual income was in some dispute. While Glenda suggested that business records put Todd's potential income as high as $240,000, Todd argued for a significantly lower figure.

In its findings, the court acknowledged the dispute but concluded that there was a basis to consider Todd's financial position within the range suggested by Glenda. The court noted that on a $240,000 income calculation, the Spousal Support Advisory Guidelines indicated a monthly midrange amount of $6,837. Yet, the court settled on an interim support level of $5,000 monthly.

The challenged interim spousal support order was made in morning chambers. The court acknowledged that the "morning chambers" for family law cases are not, given the time constraints and often limited financial and other disclosure common in the early stages of litigation, "an elegant place to litigate," frequently resulting in "rough justice." Nonetheless, the court said that the decision made in the morning chambers aimed to provide a temporary remedy, not a permanent solution. The court observed that such interim orders are subject to review and adjustment at trial, emphasizing their provisional nature.

The court noted that amendments to the Alberta Rules of Court offer a "streamlined trial" system for family law cases, emphasizing proportionality. The court suggested that this case might be designated for such a streamlined trial, a new option not available to the chamber's judge during the initial proceedings.

Todd Rutter argued that while rough justice may be mandatory under the stresses of time and judicial limitations, even a decision delivering "rough justice" must address the functions of intelligibility and reviewability of reasons necessary for party understanding and meaningful appellate review. He asserted that the chambers judge's reasons, even in the context of the materials filed, did not demonstrate how the judge reached the decision. However, the appeal court found that the chambers judge took a step-by-step approach in giving his reasons for the decision. The court emphasized that an interim order made in chambers is entitled to deference and noted that interim orders are necessarily made on a less-than-perfect record. The court further said an interim order is "a band-aid, not surgery."

The court urged parties to "not waste finite time and money appealing interim orders – time and money better spent achieving an equitable settlement, or getting a final determination at trial of all matters in issues."

Ultimately, the court found no error justifying appellate review. As a result, the court dismissed the appeal.