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Family - Family Law Rules (FLR) (Ontario). Studley v. Studley
In Studley v. Studley (Ont CA, 2022) the Court of Appeal considered an appeal from a successful motion to amend pleadings under Rule 11(3) of the Family Law Rules:(a) Leave to Amend
[8] I see no error in the motion judge’s decision to permit the respondent to amend his Answer. Rule 11(3) of the Family Law Rules, O. Reg. 114/99, which governs this process, provides as follows:(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate. [Emphasis added.] [9] Before the motion judge, and repeated in this court, the appellant contends that permission to amend at this time will disadvantage her in a way that cannot be compensated by costs or an adjournment.
[10] First, the appellant submits that there is prejudice arising from her claimed inability to access documents that are essential to meet the respondent’s constructive and resulting trust claims. In particular, she adverts to the evidentiary burden that would be placed on her to rebut the legal presumption of a resulting trust: Pecore v. Pecore, 2017 SCC 17, [2017] 1 S.C.R. 795, at para. 24.
[11] The motion judge did not agree with this submission, nor do I. Though not determinative, she noted that there seemed to be no dispute that the properties were purchased with funds earned from the respondent’s company. Moreover, the motion judge said, at para. 8: “[T]he Applicant has not pointed to any specific documents or other evidence related to the Respondent’s proposed amendments that she will be unable to locate or recall because of the passage of time.” At the hearing of the appeal, counsel for the appellant was unable to provide any further clarity.
[12] Second, the appellant contends that prejudice can be presumed by virtue of the unexplained delay alone. In rejecting this submission, the motion judge observed that the appellant had failed to promptly move the litigation forward. As already noted, the Application was issued in October 2015, but at the time the motion was heard, the appellant had done little to move the case forward in the meantime. Moreover, the respondent produced expert reports concerning his income and business interests on March 2, 2020. The appellant has yet to provide her responding reports.
[13] The motion judge also recognized that, unlike the situation in Moghimi v. Dashti, 2016 ONSC 216 (where leave to amend was denied), here the respondent was not seeking to amend his Answer on the eve of the trial. When the motion was heard, the next scheduled event was a settlement/trial management conference on September 14, 2022. At the hearing of the appeal, the panel was advised that this conference went ahead. A two-week trial is now scheduled for October 2023. Thus, the appellant was not taken by surprise at the last minute.
[14] Finally, the appellant submits that she would be prejudiced by the fact that, if the respondent is allowed to assert his trust claims after the general two-year limitation period, she will be unable to make corresponding claims on his business interests. This submission has no merit. Had there been a basis for such claims, they presumably would have been made at the outset of this litigation. And as the motion judge said, any inability to now assert such claims is attributable to differing limitation periods which cannot alone create prejudice.
[15] In my view, the motion judge did not err in finding that the appellant failed to demonstrate prejudice that should preclude the respondent from amending his Answer. The test set out in r. 11(3) strongly favours permitting amendments unless prejudice is demonstrated. The assessment of prejudice is an inherently discretionary exercise: Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271, at paras. 17-19. Decisions made by motion judges under this rule are entitled to considerable deference on appeal.
[16] I would dismiss this ground of appeal.
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