Court Cases & Orders Property Division, Sharing & The Matrimonial Home

Want to Win in Court? Make Sure Your Court Documents are Complete


Want to Win in Court? Make Sure Your Court Documents are Complete

It is a fundamental principle of Family Law litigation – indeed, in all litigation – that a party’s court documents and pleadings must be accurate and comprehensive, and must fully define the basis on which various legal rights are being asserted. Whether parties are self-represented or have the assistance of lawyers, those court documents will define and often limit the remedies that a litigant is entitled to pursue.

A case decided last week provides a handy illustration of this very basic principle.

In this case the woman and man had started their relationship in 1993, and lived together in a home owned by the man. They legally separated in 2008, though they continued to live under the same roof. The man eventually moved out, however. The woman then asked the court for a declaration that she owned a 50% interest in the property, even though it was registered solely in the man’s name. Her claim was based on a claim for “constructive trust” and “unjust enrichment” (which are legal notions designed to remedy situations such as this one, where one partner claims to have invested time, money and effort into improving a property owned solely by the other).

She was asking for summary judgment on these issues, which would grant her the requested relief without having to embark on a full trial.

The man defended the woman’s claim for unjust enrichment on the basis that she was out of time. The woman’s claim was subject to the two-year deadline (or “limitation period”) set out in the provincial Limitations Act, 2002. The woman’s claim had been commenced too late, he said.

In opposition to that, the woman claimed that the 10-year limitation period under the Real Property Limitations Act applied; alternatively, she claimed that there was no deadline at all because her claim was based in equitable principles to which no limitation period applies.

Essentially, the court found that these arguments were premature; a basic litigation principle had been overlooked.

The problem was this: The wife had not actually amended her written court documents to reflect her claim for unjust enrichment, even though she had previously been granted the court’s permission to do so. To this situation the court remarked: “…it would be dangerous, if not impossible, to grant summary judgment on a claim that has not yet actually been pleaded.”

Secondly, the wife’s court documents also did not contain any reference to her limitation period defence at all. The court likewise pointed out that to succeed at trial, the person making the claim must actually plead the defenses on which he or she plans to rely. The court said: “In my view, it would be illogical if a respondent could obtain judgment in a summary fashion on a defence that he could not succeed upon after a full trial because of a failure to plead the same.“

For the full text of the decision, see:

Groulx v. Taillefer, 2013 ONSC 515 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.