The Ontario Court of Appeal, in a recent case called Frick v. Frick, confirmed that the Ontario Family Law Rules are philosophically different from their civil counterpart, and reflect the unique nature of litigation involving families.
The initial facts in Frick v. Frick were unremarkable: The couple married in 1993 and had two children. They separated 20 years later, and the wife started divorce proceedings. In addition to custody and spousal/child support, she also asked for the usual equalization of Net Family Property (NFP).
But after filing her pleadings, the wife learned that the husband had spent money on extra-marital activities during the marriage, namely those incurred during what she claimed was a “10-year affair”, as well as the cost of male and female escort services and an adult fetish website membership.
In light of that spending, the wife claimed the husband had recklessly depleted his share of family funds during the marriage. Because of it, she asked for an unequal division of NFP in her favour, now that their relationship was over. She asked the court for permission to amend her claim accordingly.
But the court declined and went one step further by expressly preventing the wife from asking for an unequal NFP division at trial. The wife appealed.
The Appeal Court ruled in her favour, finding that the motion judge had made several procedural errors. For one thing, he had innovated certain evidentiary requirements for the wife to meet, which were simply not contained anywhere in the Family Law Rules (FLR). He took issue with the wife’s failure to specify in her pleadings the precise FLR provisions on which she relied for unequal division, even though these were implicit. He took procedural liberties by essentially bringing his own motion to strike out the wife’s unequal division claim, and baring her from pursuing it at trial, even though the husband had not requested these remedies himself.
The motion judge had also applied an unjustly-high threshold for establishing the wife’s unequal division claim and had deprived her of notice that it might be struck out permanently. As the Appeal Court put it:
Here, the wife knew that the motion was to strike portions of her document. She could not have known that her claim for an unequal division would be judged according to the summary judgment rules. Nor could she have known that her claim would be barred forever since she was denied leave to amend.
The key error, however, was the motion judge’s assessment that the FLR governed certain procedural aspects inadequately and that he should look to the civil procedure rules for guidance instead. (Although Ontario judges are permitted to do this where warranted, the motion judge, in this case, showed over-reliance on the civil rules, and misunderstood when they could be invoked.).
In this context, the Court of Appeal made some important comments about the fundamental nature of the FLR:
The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.
The Appeal Court allowed the wife’s appeal, in part.
For the full text of the decision, see:
Frick v. Frick, 2016 ONCA 799 (CanLII)