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Family law

In the recent case of G(M.H) v B(R.J) 2021 ONSC 2467, the court was tasked with determining whether a civil action and the family law matter should be “joined” in accordance with the principles enshrined in the Court of Justice Act to avoid a multiplicity of legal proceedings.


In this case, the Applicant in a Family Law proceeding also commenced a civil application containing identical allegations but seeking different forms of relief.

The parties were married in September of 2010 and separated in August of 2017. Prior to commencing their romantic relationship, the parties had a doctor – patient relationship. Post separation, the Applicant brought a claim in the family court for spousal support, equalization of net family property, a 50% interest in the defendant’s/ respondent’s property, exclusive possession of certain household contents and associated relief. There was no claim for tort damages in the divorce application, but the civil pleadings (Notice of Application) allege an improper doctor patient relationship, a pre-marital predatory sexual relationship, breach of trust, financial dependency and financial losses and hardship arising out of the relationship.

The defendant/ Respondent in the case argued that it is unreasonable for him to have to face two lawsuits. He argues that the civil suit, complete with a jury notice, is an improper attempt to circumvent the family law regime and is an abuse of process. He also argues that the claim as drafted discloses no cause of action — or at least no cause of action not already encompassed by the divorce proceeding.

With that in mind, the court had to determine whether they would strike the claim or stay the action. The Plaintiff argued that both proceedings should be allowed to proceed independently. Alternatively, the plaintiff argued that the court actions could be tried together or consolidated, so long as his procedural rights under a civil action are preserved, such as trial by jury.

The court asked: Is it appropriate to have two separate proceedings in two branches of the court under different procedural rules? What steps should be taken to promote efficient and effective resolution of both matters?


Because part of the applicants claims predated the marriage, the court was unable to make a finding that the entire civil matter was an abuse of process. In order to rectify that concern, the judge found that the proper solution was an order for joint case management, a combined production and discovery schedule and a presumptive order for trial together. The judge also struck the jury notice.

Duplication of proceedings must be minimized to the extent possible. Also, the court does not want to allow one action to proceed to the detriment of the other.

The overarching goal of avoiding a multiplicity of proceedings is not absolute. As Justice McLeod reminds us, “this principle that all issues between litigants should be dealt with at the same time is not rigid. Even where issues could logically be dealt with at the same time, the court may have to depart from this approach if the resulting litigation is unwieldy, impractical or unfair. Although Rule 5.01 encourages joinder of issues, Rule 5.02 provides for “relief against joinder”. If the joinder of multiple claims (or parties) may result in “undue delay, complication or prejudice”, the court may order separate hearings or divide the case into separate actions.”.

However, the court reminds us that the Family Law Rules approach this question slightly differently. The Family Law Rules are the governing rules for any litigation on a defined list of proceedings dealing with family law.

The court stated that “for this reason, although the joinder and relief against joinder provisions in the civil rules apply to this civil action, those are not the rules which govern whether the tort claims should be allowed to proceed as a separate action or should be tried together with the divorce proceeding. Rather, the governing provisions are s. 21.9 of the Courts of Justice Act and Rule 1 (5) of the Family Law Rules”.

Where a proceeding included in the list of matters that fall within the exclusive jurisdiction of the Family Court is combined with a related matter that is not on that list, the court may, “with leave of the judge, hear and determine the combined matters.”

However, “if a case in the court combines a family law case to which these rules apply with another matter to which these rules would not otherwise apply, the parties may agree or the court on motion may order that these rules apply to the combined case or part of it.”

Ultimately, under the family rules, joinder of tort claims with family law claims is permitted, but it requires leave of the court. It will be for the judge sitting in the Family Court to give leave or not and to determine what procedural rules will apply to the portion of the case that is a tort action. In that case, it is not automatic that the civil rules will apply.

What is an Applicant for divorce to do if they also wish to pursue independent tort claims? They have two options.

  1. They could insert their tort claims onto the divorce action and seek leave to have them determined in the Family Court under the Family Law Rules; or
  2. The applicant could instead start a separate tort action as was done here.

The concern with taking the first route is that leave may not be granted. The concern with the second route is that the plaintiff/ applicant runs the risk that they could face two sets of costs if their action is unsuccessful.

Regardless, in both cases, the court will still have to determine what the appropriate route is and how best to ensure that justice prevails. Tort claims are available in family law litigation, however the remedies available are not always preferred to civil remedies.

For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.