As family dynamics in Canada have shifted away from the previous norm of a single “traditional” marriage towards an increasing number of blended families and common law relationships, the need for comprehensive (and adequate) estate planning has become a complex concern.[1] As a result, the relationship between family law and estate litigation has become increasingly dynamic. Evidence of this trend was echoed in the recent case of Campbell v. Campbell[2], where the relief (eventually) claimed by the Applicant engaged both the Rules of Civil Procedure as well as the Family Law Rules. As a consequence, the Ontario Superior Court of Justice in Ottawa was recently tasked with confronting two competing motions that straddled the boundary between estate litigation and family law.

In his decision, Justice MacLeod confirmed that claims against an estate under the Rules of Civil Procedure are to proceed by way of Application, while claims under the Family Law Rules are to proceed in Family Law Court. Justice MacLeod also recognized that although a claim for dependent support against an estate is not typically brought within the normal jurisdiction of the Family Law Rules, Rule 1(5) of the Family Law Rules provides that the Family Law Rules may apply in a matter where the parties agree or where the Court orders so on a motion. Interestingly, Justice MacLeod also noted that a Case Conference under rule 50.13 of the Family Law Rules functions, to some extent, like a Motion for Directions.[3]

Facts:

In Campbell v. Campbell, the Applicant, Marilyn Campbell (“Marilyn”), was the third wife of the late Howard Campbell (the “Deceased”). Marilyn was married to the deceased for more than 30 years. Following his marriage to Marilyn, the Deceased made a will. Unfortunately, there were significant drafting problems with the Deceased’s will as it contained three seemingly incompatible bequests that made it ambiguous.

In one paragraph of the will the Deceased appeared to leave 100% of his estate to Marilyn, while in the next paragraph the Deceased appeared to create a life interest in personal property to be later divided amongst the children (the “Respondents”). Further complicating matters was that a subsequent paragraph of the will directed the trustee to divide the residue of the Deceased’s estate equally between Marilyn and his children. Depending how this paragraph was read, the will appeared to either leave 50% of the estate to the Applicant and 50% to be divided amongst the children, or, to leave each of the Applicant and the Respondents’ one-seventh of the estate.

It was the position of the Applicant that if the ordinary rules of will construction were applied, once the residue was disposed of the will was spent. In that case Marilyn would be entitled to 100% of the estate. As such, Marilyn brought an Application to interpret the will in this fashion. Conversely, the Respondents took the position that it was the Deceased’s intention to divide his estate equally seven ways. The Respondents subsequently brought their own counter Application for “rectification” to have the court rewrite the will to correctly mirror this intention. Originally, none of the parties sought to invalidate the will. However, on February 18, 2016 the Applicant amended her notice of Application to add the substantive claims under the FLA, SLRA and common law. Marilyn also included an alternative claim that the will be declared invalid (void for vagueness in effect) and that she be entitled to receive her spousal entitlement under the resulting intestacy.

In March of 2016 Justice MacLeod made a timetable order and fixed the date for the hearing of the application. However, the timetable was not met and the hearing did not proceed. As a result, the parties arrived at a “procedural gridlock” where the relief sought engaged Rules 14 and 75 of the Rules of Civil Procedure as well as the Family Law Rules. The issues before the court ultimately resulted in two competing motions. The first was motion by the Respondents seeking an order for production of documents. The second was referred to as a “bifurcation motion”. This “bifurcation motion” was a motion by the Applicant which sought an order for the immediate scheduling of the issues relating to the will and postponement of the adjudication of the alternative relief.

Finding:

Under the Family Law Rules, an Application must begin with a case conference which functions to some extent like a motion for directions. Justice MacLeod concluded that in amending the original application to advance the substantive alternative claims in the same proceeding, the Applicant was simply seeking to preserve her rights in the face of a potential limitation period. To the extent that she was advancing claims which are in the exclusive jurisdiction of the family rules and the family branch, this was procedurally incorrect.

In his decision, Justice MacLeod noted that in any estate litigation, a party may obtain an order for directions pursuant to Rule 75, including issue management and procedural directions. Conversely, Applications under Rule 14 are governed by the procedure in Rule 38, and the Application judge is specifically empowered to decide only part of the Application (and to order a trial of other issues). Rule 2.01 of the Rules of Civil Procedure provides that failure to comply with the rules is an “irregularity” and “it does not render a proceeding a nullity” nor shall the court “set aside an originating process on the ground that the proceeding should have been commenced by an originating process other than the one employed.” Although this provision is not specifically replicated in the Family Law Rules, it is consistent with the primary objective. More importantly, it is dealt with in s. 110 of the Courts of Justice Act which provides that if a proceeding is commenced in the wrong court, it may be transferred to the correct court and will continue as if it had been commenced in the correct court.

Justice MacLeod found that there was no bar to an order separating the issues that were improperly joined in the Application and that there was a duty upon the court to give directions as to how these matters are to be resolved. Given the relative simplicity of the will interpretation issue, the fact that it may dispose of the litigation, and the extensive (and expensive) disclosure that would be required to pursue the alternative claims, Justice MacLeod determined that the most appropriate order was to sever the contingent claims from the application to interpret, rectify or invalidate the will and to transfer those other claims to Family Court. This included claims for an equalization of net family property, dependent’s relief and a constructive trust. These claims were subsequently transferred to Family Court without the need to reissue pleadings. As such, this case is an excellent reminder for both novice and experienced counsel that procedural non-compliance is not fatal and that the courts are willing to correct procedural errors when it is in best interest of the parties and for the administration of justice. That said, if there is a deceased person’s estate at issue, it is more than likely that all claims respecting family law related matters ought to be brought on the estates list by Application (as directed by the relevant statutes and the Rules of Civil Procedure). In this way procedural wrangling’s, including those of venue and jurisdiction, can and will be avoided.

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[1] Popovic-Montag, S., & Hull, I. (2013, September 3). The “Marriage” of Estate and Family Law. Retrieved from http://www.huffingtonpost.ca/suzana-popovicmontag/estate law_b_3546132.html

[2] Campbell v. Campbell, 2017 ONSC 2139

[3] Interplay between Family Law and Estate Litigation [2017], Jennifer Jolly