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This recent decision from the Ontario Court of Appeal represents a potential change to the manner in which parties make a claim for an unequal division of net family properties pursuant to section 5(6) of the Family Law Act. Specifically, the Court of Appeal finds that such a claim does not necessarily need to be specifically pleaded in an application. The case also serves as an important reminder that the Family Law Rules have been specifically drafted to suit family law litigation, and that family law litigation is distinct from civil litigation. Specifically, pleading material facts is not necessary in family law cases, as material facts are often not known at the commencement of litigation.


The parties were married in 1993 and separated in 2013. There are two children of their marriage. After the parties’ separation, the wife commenced an application for a divorce, and made a claim for custody, spousal support, child support, and equalization of net family properties. However, after commencing her application, the wife learned that the husband had been involved in an affair, the expense of which the wife claims depleted the husband’s net family property. The wife subsequently amended her application to make a claim for an unequal division of net family property. In response, the husband brought a motion to strike the wife’s amendments pursuant to Rule 1(8.2) of the Family Law Rules as being without merit, inflammatory, and designed for the purpose of personally attacking the husband.

The motion judge decided in favour of the husband, finding that the wife’s amended pleadings failed to plead material facts, specifically, that the husband’s spending had any impact on his financial status. As the Family Law Rules do not require an application to plead material facts, the motion judge made analogy to the Rules of Civil Procedure to impose the requirement to plead material facts. The motion judge determined the Family Law Rules were not the proper mechanism for addressing this defect in the wife’s amended pleadings, and as such, held that Rule 1(8.2) did not apply. The motions judge instead moved to summary judgment as provided within the Family Law Rules, and held that there was no reasonable claim for an unequal division, and the wife’s amended pleading was therefore struck without leave to amend.


In rendering its decision, the Court of Appeal answered the following questions:

  1. Was the wife’s pleading defective for failure to plead material facts?
  2. Was the motion properly brought under r. 1(8.2)?
  3. Should the claim for unequal division of net family properties have been struck pursuant to r. 16(12)?
  4. Should portions of the wife’s application be struck under r. 1(8.2)?

The Court begins its analysis by noting that the Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The Court of Appeal rejects the motion judge’s reasoning that the Family Law Rules did not adequately cover the contents of a pleading because, unlike the civil rules, there was no requirement of a concise statement of facts. The Court of Appeal states that family law cases are commenced by way of a Form 8: Application, and the Family Law Rules do not require all material facts to be relied upon because at the commencement of family law litigation, a party may not yet know all material facts supporting their claim. The Court continues to note that continuing financial disclosure obligations play an important role in family law litigation because parties might not know, but are entitled to discover, the details of the other party’s financial position. Parties will not know all material facts at the time they are making their pleadings. To require material pleadings before financial disclosure would, as the Court states, be “contrary to the way family litigation is conducted, contrary to the family rules and contrary to basic fairness”.

When determining if the husband’s motion had been properly brought under Rule 1(8.2) of the Family Law Rules, the Court of Appeal again notes that the motions judge made reference to the civil rules. The Court of Appeal found that Rule 1(8.2) of the Family Law Rules adequately sets out when portions of a document can be struck in family law proceedings, and that no reference to the civil rules is necessary. The Court finds that the motion was properly brought pursuant to Rule 1(8.2), and should have been dismissed according to same.

When analyzing whether the wife’s claim should have been struck pursuant to the Rule 16 of the Family Law Rules for summary judgment, the Court found that while the wife was aware that the motion was to strike portions of her documents, she could not have foreseen that her claim for unequal division would have been tested under the summary judgment rules. Further, she could not have known that her claim for unequal division would be barred forever. As such, the wife did not know she had to respond to the test for summary judgment, and it was an error for the motions judge to apply the summary judgment rules without notice. Further, the Court of Appeal held that the motion judge incorrectly eliminated the wife’s pleadings at that stage. Although bringing a claim for unequal division on account of marital infidelity is challenging, that does not mean such a claim can be eliminated at the preliminary pleading stage. The Court notes that a determination of unconscionability is made after equalization has been calculated.

Even more notably, the Court further finds that the wife did not need to make the claim pursuant to section 5(6) for unequal division in her application at all. The wife’s cause of action was for an equalization payment, which includes an unequal division of same pursuant to section 5(6). Specific reference to s. 5(6) is not required, provided the parties are aware that at the time equalization is calculated, the court will be asked to make an unequal division. As such, the court has discretion to apply section 5(6) if the conditions of that particular section are met in a given case. While the party making the claim for unequal division should provide notice as such to the other spouse so that they can respond accordingly, s. 5(6) “does not need to be specifically pleaded”.

Lastly, when analyzing whether any portion of the wife’s application should be struck pursuant to Rule 1(8.2), the Court finds that some of the wife’s statements were inflammatory, and were intended as a means to question the husband about his affair, and not about the consequences to his net family property. As such, the Court strikes those paragraphs of the wife’s application which are inflammatory, but permits the claim for unequal division of net family property. The wife now faces the high hurdle of establishing that the husband’s affair depleted his net family property to the point of unconscionability.