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PROCEDURAL FAIRNESS: ONTARIO APPEAL COURT MUDDIES THE WATERS

Procedural Fairness v. Procedural Anarchy: The Ontario Court of Appeal in Frick v. Frick 2016 ONCA 799 has attempted to promote procedural fairness. While partially successful in that endeavour, the court has unfortunately encouraged procedural anarchy.

Economic factors leads wife to amend her Application: When the wife in Frick belatedly discovered that the husband had been blowing oodles of cash on a long-time mistress, escort services and porn sites, she amended her pleadings to claim an unequal division of net family property (NFP). "Reckless depletion" of one's NFP can qualify under Ontario's Family Law Act (FLA) 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.

Motions Judge strikes the amendments: The husband moved to strike the amendments. The motions judge, Justice M. Gregory Ellies of the Superior Court of Justice, struck it all. The appellate court allowed some of the amended portions to remain but put the kibosh on some key allegations that were economic based and should not have been struck. If you lend your untrustworthy and impecunious friend a million dollars, then you have recklessly depleted your NFP and you ought to be held accountable. If on the other hand you engage in a course of conduct that loses you a million dollars, but did it by spending the money on economically unproductive endeavours (eg. adulterous relationships, porn, escorts and what not), then why should you get a free pass?

A judge cannot just declare a motion to be "summary judgment": 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.

Proper pleading practice: It's too bad that the court did not apply those same principles when it opined on family law pleading practice. Here is some background: The Rules of Civil Procedure (RCP) R. 25.06(1) state:

"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) 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..."

Ontario Court of Appeal advocates imprecise pleading practice: To my mind, there is no material difference between the RCP and the FLR and neither should there be differing interpretations. The appellate court disagrees with me. Incredibly, Justice Mary Lou Benotto wrote:

The family rules do not require all the material facts relied on to be set out at the time the case is started because a party will often not know all the facts supporting a claim. That is why the family rules provide stringent financial disclosure obligations. The emphasis on financial disclosure reflects the fact that parties might not know - and are entitled to find out - the details of the other's circumstances. To require a party to plead "material facts" before financial disclosure would run contrary to the way family litigation is conducted, contrary to the family rules and contrary to basic fairness. [Emphasis added.]

Later in her reasons, Justice Benotto writes:

"Second, and perhaps most important, in my view the wife did not even need to plead s. 5(6) in her application. Section 5(6) is not a separate cause of action. The cause of action is under s. 5(1)." [Emphasis added.]

S. 5(1) addresses equalization of NFP; s. 5(6) addresses unequal division of NFP.

The Ontario Court of Appeal gives us two reasons for not having to plead the material facts:

(1) At the beginning of the case you might not have all of the financial disclosure that you need.

(2) The FLR are constructed 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 (and here I am interpreting the appellate court) - you don't need to specify your relief because what you might want is in the FLA anyways. This is a truly startling proposition. In my view, the Appeal Court is inviting chaos and anarchy into an already woefully undisciplined practice area.

Implications: I agree that "basic fairness" is central to the system but Frick detracts from that principle. The court's approach will serve to encourage further deterioration in already woefully deficient pleadings. 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 astounding and nothing less than a revolution in pleading practice:

(1) You don't have to properly plead a case because you might not have full financial disclosure at the outset.

(2) You do not have to plead unequal division of NFP in order to achieve that result later.

The pleading portion of the appellate decision is just wrong: The court expressed a concern for procedural fairness; that was spot on. But stream of consciousness allegations mixed in with random evidence obfuscated with vague (or even totally absent) claims that may or may not even need to be pleaded-all of which causes you to guess at what the true case it is that you have to meet-this should not be promoted as the norm.

Amend the Rules!: I call upon the Family Law Rules Committee to amend the rules: Family law pleadings should contain specific claims and material facts. When new facts come to light whether by way of financial disclosure or otherwise, then one may amend his/her pleadings. To encourage anarchy is destructive to the orderly progression of cases.

A slightly modified version of this article originally appeared in the February 17, 2017 issue of The Lawyers Weekly published by LexisNexis Canada Inc.

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