In her recently-released decision in Smith v. Anderson, Master Bouck
has allowed a claimant's application to amend a Notice of Family Claim filed prior to the new Family Law Act to
include property claims under that act.
As readers will recall, the Family Law Act extends the same
property rights to unmarried spouses as its does to married spouses. Moreover, the act is not explicitly worded so as
to prevent unmarried spouses who started court proceedings before
the new act came into effect from changing their claims to ask for property order under that act. (On
the other hand, married spouses who split up and started court proceedings
before the new act are stuck with the old act.) As you can imagine, there has been much discussion among the bar about what should be done when someone wants to change an older claim to seek property orders under the new act.
I happen to believe, at least for now, that there is little that can be done to stop someone from making such a change (see my post "Court Declines to Determine Application of FLA to Unmarried Spouses Separating Before Act"); others take a different view. However, I also agree with the view of Master McCallum in Reynolds v. Huard that at a minimum an unmarried spouse must be within the two-year time limit set out in s. 198 when the property claim is added.
In the Smith case, the claimant had already made one amendment under
SCFR 8-1(1)(a) — you only get one free amendment before the Notice of Trial is filed — leaving the respondent in the delightful position of being able object to the second amendment and force the issue to a hearing before trial.
Master Bouck held that the basic law on such amendments was as summarized in Dawe v. B.C. Children's Hospital, a 2004 decision of our Supreme Court, in which Madam Justice Ross said this (cites omitted):
"[17] The general principles to be applied in the consideration of an application to amend are as follows:
(a) amendments should be permitted as are necessary to determine the real question in issue between the parties
The basic rule, set out expressly in the former Rules and no doubt still applicable, is that such amendments should be permitted as are necessary to determine the real question in issue between the parties. Rule 1(5) requires an interpretation of the rules which permit the just and speedy determination of the dispute on its merits. Similarly, the Law and Equity Act, s. 10, requires the court to grant all such remedies as any of the parties may appear to be entitled to "so that, as far as possible, all matters in controversy between the parties may be completely and finally determined;(b) the court will not give its sanction to amendments which violate the rules that govern pleadings, including the prohibition of pleadings which disclose no reasonable claim. In considering this question, the court will apply the same tests and considerations as applicable on an application to strike claims already pleaded;
(c) a party is not required to adduce evidence in support of a pleading before trial;
(d) on an application to amend the facts alleged are taken as established;
(e) the discretion is to be exercised judicially, in accordance with the evidence adduced and the guidelines of the authorities. Factors to be considered include: the extent of delay, the reasons for delay, any explanation put forward to account for the delay, the degree of prejudice caused by the delay, the extent of the connection between the existing claims and a proposed new cause of action. The over-riding consideration is what is just and convenient."
Master Bouck then reviewed the few number of cases of unmarried spouses wishing to amend claims to seek orders under the Family Law Act, namely Reynolds and P.N.K. v. C.L., another case in which an amendment was sought out of time, and observed that:
"[30] In neither case, however, does the court rule that the FLA will not apply to the circumstances in which Ms. Anderson and Mr. Smith find themselves. That is, an action already commenced but with a separation date arguably within the two-year period stipulated in s. 198(2)(b)."As a result, she found that:
"[31] ... I am unable to conclude that the claims made in the proposed amendments are bound to fail. It will be up to the trial judge to decide the whether the FLA remedies can be applied."In the meantime, for the purposes of allowing the parties to prepare for the trial at which the applicability of the FLA remedies would be determined, the court concluded that it would be "just and convenient" to grant the amend of the Notice of Family Claim (important bits in bold):
"[33] First, I accept the claimant’s submission that denying the amendments would simply result in another action being commenced. A multiplicity of proceedings is to be avoided. A second action will certainly not lead to a speedy resolution of the parties’ dispute: Rule 1-3 of the SCFR.
"[34] Second, I find that no fault lies with the claimant for the suggested delay in bringing this application before the court. The application could not have been made before the FLA came into force. The delay in having the application heard can be attributed to a number of factors, including both counsel’s other commitments and the vagaries of Supreme Court chambers time.
"[35] As well, I accept that the respondent was given reasonable notice that these amendments were going to be pursued.
"[36] Third, while it is appreciated that the amendments may lead to further discovery (and probably additional expert reports), any resulting prejudice to the respondent can be remedied by the trial judge in a costs award.
"[37] Weighing all of these factors, I find that it would be just and convenient to grant leave to amend the notice of family claim in accordance with the draft pleading appended as Schedule “A” to these reasons. It is to be noted that this document includes a plea not found in the originally proposed further amended notice of family claim, namely a claim against the respondent for occupational rent. Claimant’s counsel did not believe that such a plea was necessary at law. The respondent takes a different position. Thus, it is just and convenient to allow this amendment to ensure that all matters between the parties are properly adjudicated upon at trial.
"[38] The original further amended notice of family claim will be returned to the claimant as the document should be appended to the order submitted to the registry."My thanks to the inestimable Agnes Huang for bringing this case to my attention.
