Focus On

Family Law - Marital property - Equalization or division - Considerations - Conduct of parties - Dissipation of assets, preservation of property - Unequal division of property

Thursday, November 24, 2016 @ 7:00 PM  


Appeal by the wife from an order striking a portion of her claim. The parties married in 1993 and separated in 2013. They had two children. The wife commenced divorce proceedings. She sought to amend her claim for equalization of net family property to provide for an unequal division in her favour. The wife alleged the husband recklessly depleted net family property by spending money on extramarital affairs and prostitution. The husband moved to strike the amendment. The motion judge found, having regard to the Civil Procedure Rules, that the wife pled insufficient material facts in support of her claim. The concept of depletion for the purpose of an unequal division of property related to an end financial result rather than the moral nature of the alleged spending. Relying on the Family Law Rules summary judgment provisions, the motion judge struck the relevant portions of the wife’s amendment without leave to amend. The wife appealed.

HELD: Appeal allowed in part. The motion judge’s analysis reflected a misunderstanding of the Family Law Rules by relying on civil procedure concepts related to pleadings. The Civil Procedure Rules and related jurisprudence were not available for import to determine family law procedural issues. The wife’s pleading claiming an unequal division of net family properties was not defective for failure to plead material facts. The motion judge erred in approaching the impugned pleading from a summary judgment perspective without sufficient notice to the wife. In addition, the motion judge was incorrect to strike the wife’s claim for unequal division at the pleading stage. Determination of whether the high threshold related to morally objectionable conduct was met required a prior calculation of the usual equalization payment and a finding of unconscionability. By definition, such determinations could not be made on a pleading motion. Under Rule 1(8.2) of the Family Law Rules, the portion of the application unrelated to financial consequences was struck. The remainder of the claim did not offend the Rule.