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Courts - Traversing (Between Different Court Streams). Rai v. Rai
In Rai v. Rai (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal, this brought against "the motion judge’s order granting the respondent’s summary judgment motion and dismissing the appellant’s claim".
These extracts illustrate how a Superior Court case may be 'traversed' between the civil and family 'streams':[6] Some context is helpful to understand this issue. The appellant commenced his claim in 2016. Although this matter was commenced as a civil action, in 2019, it was traversed by a judge of the Superior Court to the family law stream of the Superior Court in Toronto, apparently because the parties had been previously married. However, the issues arising out of their divorce had been addressed by a judgment in Florida in 1999.
[7] Because of the COVID-19 pandemic, there was a delay in moving the matter forward. In March 2023, the appellant filed a motion for disclosure of financial statements from the respondent under the Family Law Rules. This motion was never heard.
[8] In April 2023, a judge of the Superior Court traversed the matter back to the civil stream on the basis that none of the appellant’s claims were family law claims and the matter should proceed pursuant to the Rules of Civil Procedure. This was clearly explained in an endorsement. In November 2023, another judge of the Superior Court reiterated to the parties in a case conference that the matter was proceeding under the Rules of Civil Procedure and was not a family law case. Again, this was clearly explained in an endorsement.
[9] In September 2023, the respondent was cross-examined on her affidavit filed in the summary judgment motion. At the respondent’s cross-examination, she refused to answer a number of questions about financial issues. It was open to the appellant to seek to compel answers to the refused questions, pursuant to rule 34.12(3) of the Rules of Civil Procedure. Yet the appellant did not bring a refusals motion. The earlier disclosure motion filed under the Family Law Rules in March 2023 was not a refusals motion, since it was filed before the respondent’s cross-examination and brought under the Family Law Rules.
[10] In summary, while we acknowledge that the transfer of this file back and forth between the civil and family streams of the Superior Court in Toronto was unfortunate, the appellant was advised repeatedly by the court well in advance of the hearing of the summary judgment motion, in May 2024, that the matter was proceeding under the Rules of Civil Procedure. He was not entitled to demand disclosure under the Family Law Rules. The appellant was represented by counsel. It was open to him to seek to compel answers to the questions refused by the respondent at her cross-examination on the motion and he failed to do so.
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