Husband Seeks Spousal Support and “Damages” under Civil Process, Rather than under Family Law – Entire Claim Struck Out
In a recent case called Conroy v. Vassel the self-represented husband misguidedly tried to launch his Family Law-based claims in civil court – rather than under the Family Law Act and Rules – and had it promptly struck out by the court, with costs awarded against him.
In that civil suit the plaintiff was the husband, and the defendant was his former wife, whom he had married in 1994 and divorced in 2011. The husband had both a law degree and a degree in medicine; he practiced as a medical doctor in Ontario until 1999 when he had a serious accident that required him to be off work for three years. His marriage began to suffer and in 2007 the wife discovered that the husband had become involved with another woman in Columbia. He left the home in early 2008 and by the end of that year advised the wife that his girlfriend was pregnant, and that he wanted a divorce.
This was followed by a series of misfortunes for the husband, including an investigation by the College of Physicians and Surgeons, and the loss of his license to practice medicine due to his mental health problems. He filed for bankruptcy at the end of 2010.
Earlier that same year, he and the wife negotiated a separation agreement. Among other things, it called for the wife to get title to the matrimonial home, and for them to each give up the right to make certain legal claims against the other, including claims for retroactive spousal support.
Yet in 2012, after he was discharged from bankruptcy, the husband suddenly started threatening to take legal action against the wife anyway. He alleged the 2010 separation agreement was null and void, and he promised to seek both child and spousal support from her, through the courts.
In 2017, the husband did exactly that – except he commenced his action in the regular civil courts, rather than in the Family Law courts where he could make the usual claims for support under the established process. Instead, he opted to make civil-law-based claims against the wife for various types of damages: general, exemplary, restitutionary, compensatory, and aggravated – totaling about $480,000. The basis for his putative civil claims was that the wife had formally breached their separation agreement by: 1) refusing to return a specific turquoise bracelet when he demanded it back; and 2) by refusing to cooperate in calculating and paying him spousal support.
The wife brought a motion to have these civil claims against her struck out, because they disclosed no cause of action against her, or because they were an abuse of the court’s process. She pointed out that this was the first time the husband was claiming support from her, and that if he wanted to do so at this stage then he was obliged to use the processes established under the Family Law Act and its Rules.
The court agreed. It reasoned that the Act and the Rules were a complete code to bringing, proving, and adjudicating spousal support claims. Although the husband was a self-represented litigant and could be afforded a little leeway for his lack of training and experience, he could not expect to be the exception in terms of the process to follow. The court conclude that the husband’s “attempt to seek spousal support in the guise of a civil claim for damages is misguided and constitutes an abuse of process.”
It struck out his claim, without leave to amend. However, it invited him to proceed with a spousal support claim against in the customary fashion, by delivering an application in accord with the Family Law Act and Rules.
The court went on to consider costs, and ultimately accepted the wife’s position that the husband’s entire civil court action was misconceived. In fact, she gave evidence that the husband had gone ahead with it even though she had advised him upfront that he was using the wrong court process. The court accordingly ordered him to pay $7,500, which was in addition to $5,000 in costs he had been ordered to pay after a prior related hearing.
However in an interesting post-script, the husband later appealed both the substantive ruling and the costs award, with mixed results: His civil claim remained struck, since the Appeal Court found no error on the part of the motion judge in finding that husband had chosen the wrong route for bring his support claims.
However, he was partly successful in appealing the costs portion of the ruling, The Court of Appeal stated that it did “not see this so much as a case of abuse of process,” but was rather the “product of confusion on the part of an in-person litigant”. It therefore reduced the costs award on the prior motion from $7,500 to $2,500. It dismissed the appeal in all other respects.
For the full text of the decisions, see:
Conroy v. Vassel, 2019 ONSC 4147 (CanLII)
Conroy v. Vassel, 2020 ONCA 14 (CanLII)
FamilyLLB is written by Russell Alexander, a collaborative family lawyer based in Ontario, Canada who has helped his clients for over twenty years. Russell Alexander Collaborative Family Lawyers practice in all aspects of family law including separation and divorce, property division, child support, child custody and access, and spousal support.