The Family Law Rules contemplate the discovery of new material facts after filing of originating process, and allow for amendments to be made in light of such facts.

Epstein’s This Week in Family Law , 2016-46

Philip Epstein

Frick v. Frick, 2016 CarswellOnt 16670 (Ont. C.A.)

Ontario Family Law Rules - Pleading Material Facts - Unequal Division of Net Family Property - Conduct

Frick v. Frick, 2016 CarswellOnt 16670 (Ont. C.A.) - Hoy A.C.J.O., Lauwers and Benotto JJ.A. Justice Mary Lou Benotto of the Ontario Court of Appeal has taken a leadership role in that court in the family law field. As Chairperson of the Family Law Rules Committee, she is in a unique position to apply her extensive knowledge of the Family Law Rules to cases that involve an application of those rules. This is an important decision of the Court of Appeal for Ontario counsel and will undoubtedly shape how pleadings are drawn in the future.

I commented on this case at first instance and expressed some reservations about its outcome. The Court of Appeal has overturned the motion judge's order refusing an amendment by the wife.

The wife commenced divorce proceedings and included a claim for an equalization of net family property. When she sought to amend her application to claim an unequal division of net family property, the husband moved to strike the amendment. The wife had wanted to amend because she had discovered that the husband had been engaged in a 10-year affair and she wanted to argue that he had recklessly depleted his net family property entitling her to an unequal division pursuant to section 5(6) of the Family Law Act. On the hearing of the motion, the judge applied the Ontario Rules of Civil Procedure and found that the wife had not pleaded material facts that would give rise to an unequal division of net family property. On his own motion, the motion's court judge turned the motion into a summary judgment motion, found that the wife could not identify the effect, if any, of the husband's alleged spending on his net family property and, thus, precluded the wife from raising section 5(6) at the trial.

Justice Benotto, speaking for a unanimous Court of Appeal delivers a primer on the Family Law Rules and the equalization provisions of the Family Law Act.

Most importantly, she points out that family law litigation is different from civil litigation and the Family Law Rules do not require a concise statement of material facts relied upon. Family law cases start with an application, which requires the applicant to set out the details of the order sought and the important facts supporting the claim. However, it does not require material facts relied upon to be set out at the time the case is started because a party will often not know all of the facts supporting the claim.

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