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A recent Ontario case shows the potential dangers for self-represented litigants: a husband tried to file a claim for spousal support against his wife, but the court struck out his claim because he filed it under the wrong legislation and in the wrong court.

The Ontario Court of Appeal later upheld the lower court’s decision. 

What Happened?

The husband and wife married in 1994 and have two adult children. The husband has a medical degree and a graduate degree in law; he practiced as a medical doctor in Ontario until 2009, when he was stripped of his licence to practice medicine on account of mental health problems.

In 2007, the wife discovered that the husband was involved with another woman in Columbia.

The husband left the matrimonial home in early 2008. At the end of that year, he advised the wife that his girlfriend was pregnant and that he wanted a divorce.

In early 2009, the parties retained family law lawyers, but the husband discharged his lawyer shortly thereafter. 

In November 2009, the wife commenced a Family Law Act application seeking orders relating to child custody and support, spousal support and a transfer to the wife of the matrimonial home. The husband never formally responded to this application. Rather, the husband proposed the terms of a house and separation agreement, which he drafted and which was signed by the husband and wife in February 2010.

In April 2011, the parties agreed to amend the wife’s family law application to seek a divorce. The divorce was granted July 25, 2011.

In August 2017, the husband issued a statement of claim against the wife under the Rules of Civil Procedure. In his statement of claim, the husband sought restitutionary damages, compensatory damages, aggravated damages, general damages and exemplary damages in the global amount of $480,000. The claim alleged that the wife breached the separation agreement by, among other things, refusing to cooperate in calculating and paying spousal support. The husband alleged that the breaches entitled him to damages.

The wife brought a motion to strike the statement of claim, arguing that the husband had never sought spousal support and had to make his spousal support claim in conformity with the Family Law Act and Rules. She argued that bringing a civil action was an attempt to circumvent the Family Law Act and Rules, which was an abuse of process.

Lower Court Decision

The husband submitted that he was not represented by a lawyer and acknowledged that he may have asserted his spousal support claim in the wrong way. As a result, he asked for leave to amend. The court stated:

“I accept that as an unrepresented litigant, some consideration must be shown for the [husband]’s lack of legal training and experience. The fact remains, however, that the Family Law Act and Rules set out a complete code for the bringing, proving and adjudicating of spousal support claims. These are not just empty or formalistic requirements. […] 

The attempt to seek spousal support in the guise of a civil claim for damages is misguided and constitutes an abuse of process.” 

The court therefore struck out the husband’s claim without leave to amend. 

The court explained that if the husband intended to proceed with a claim for spousal support, he would have to do so by delivering an application in accordance with the Family Law Act and Rules, not by way of amendment to the civil statement of claim. 

Additionally, the husband’s claim for spousal support could only reach back two years before the issuance of his statement of claim under the Limitations Act; any claim for spousal support before June 2015 was barred.

The judge ordered the husband to pay $7,500 in costs.

Court of Appeal Decision

The court upheld the lower court decision, with the exception of reducing the husband’s costs to $2,500, stating:

“In our view, the motion judge did not err by striking the statement of claim. It was an inappropriate method to present the claims advanced by the [husband]. However, reading the record as a whole, we do not see this so much as a case of abuse of process as the product of confusion on the part of an in-person litigant.”

Get Advice 

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.