Decision 'inviting chaos' into area of family law pleadings

By Staff

Although the Ontario Court of Appeal was partially successful in its attempt to promote procedural fairness in the recent case of Frick v. Frick 2016 ONCA 799, it also unfortunately encouraged procedural anarchy, Toronto lawyer Gene C. Colman writes in The Lawyers Weekly.

As Colman, principal of Gene C. Colman Family Law Centre, explains, the wife in the matter amended her pleadings to claim an unequal division of net family property (NFP) after she belatedly discovered that the husband had been spending money on a long-time mistress, escort services and porn sites.

“’Reckless depletion’ of one’s NFP can qualify under Ontario’s Family Law Act as a ground to claim an unequal division under s. 5(6) that allows the court to make an unequal division where an equal division would be ‘unconscionable.’ Case law is consistent: you really have to pay heed to economic factors,” he writes.

The husband moved to strike the amendments, and the motions judge, Justice M. Gregory Ellies of the Superior Court of Justice, struck it all — although the appellate court allowed some of the amended portions to remain, it quashed some key allegations that were economic-based.

“Justice Ellies on his own treated the husband’s motion to strike as a partial summary judgment motion. (Husband’s counsel did not frame the motion as ‘summary judgment.’) The Ontario Court of Appeal quite correctly reversed Justice Ellies on that point. That’s the good part. Family court procedures need to be imbued with procedural fairness. There should be advance notice of the case to meet,” says Colman.

However, he adds: “It’s too bad that the court did not apply those same principles when it opined on family law pleading practice.”

As background, Colman writes, the Rules of Civil Procedure (RCP) set out that “Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.” The Family Law Rules (FLR), he says, contain no similar provision.

“However, the ‘application’ form and the ‘answer’ form: (1) direct the litigant to ‘Give details of the order that you want the court to make’ and (2) require the litigant to ‘set out below the facts that form the legal basis for your other claim(s)’ or, ‘The important facts that form the legal basis for my position…’ To my mind, there is no material difference between the RCP and the FLR and neither should there be differing interpretations,” he explains.

However, says Colman, in its decision, the Court of Appeal provided two reasons for not having to plead the material facts.

“One is that at the beginning of the case you might not have all of the financial disclosure that you need; and two, the Family Law Rules are constructed a bit differently than the RCP (that apply to regular civil cases in Ontario and may apply to family law cases only where there is a lacuna in the FLR). And apparently you don’t need to specify your relief because what you might want is in the FLA anyways. This is a truly startling proposition.”

As a result, he says, “the Appeal Court is inviting chaos into an already woefully undisciplined practice area,” with the court’s approach serving “to encourage further deterioration in already woefully deficient pleadings,” writes Colman.

“I instruct the associate lawyers in my firm to plead the ‘material facts’ but not the detailed evidence by which the facts are to be proven. These are basic rules of pleading that everyone learns in law school. According to the Ontario Court of Appeal I have been totally wrong. The decision’s implications are that: (1) You don’t have to properly plead a case because you might not have full financial disclosure at the outset. (2) You also apparently do not have to plead unequal division of NFP in order to achieve that result later.”

Although Colman says the concern expressed by the court for procedural fairness is “spot on,” he calls upon the FLR committee to amend the rules.

“Family law pleadings should contain specific claims and material facts. To encourage anarchy is destructive to the orderly progression of cases,” he writes.

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