“Rule 12(5) of the Family Law Rules provides that if “it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly.”
Rule 12 of the Family Law Rules is analogous to Rule 6 in the Rules of Civil Procedure. Both rules consider combining proceedings. Rule 6.01(1) of the Rules of Civil Procedure provides that where “two or more proceedings are pending in the court and it appears to the court that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or the proceedings be consolidated, or heard at the same time.”
The rationale of Rule 12 and Rule 6 is to avoid the risk of inconsistent rulings if different Justices deal with the same or similar issues in different proceedings. Further, the Family Court judges are judges of the Superior Court and have jurisdiction to hear civil matters. So long as the proceedings are related, there is no jurisdictional issue to trying a family law application and a civil action together.
In deciding whether to consolidate proceedings, the court will consider the following non-exhaustive factors:
a. The extent to which the issues in each action are interwoven;
b. Whether there is a risk of inconsistent findings or judgments if the actions are not joined;
c. Whether there is expected to be a significant overlap of evidence or of witnesses;
d. Whether the issues in one action are relatively straightforward compared to the complexity of the other action;
e. Whether a decision in one action, if kept separate and tried first, would likely put an end to the other actions or significantly narrow the issues for the actions or significantly increase the likelihood of settlement;
f. The litigation status of each action;
g. Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.
Canadian National Railway v. Holmes, 2011 ONSC 4837, at para 44
In Malkov v. Stovichek-Malkov, 2015 ONSC 4836, at para 15, the court applied these factors in considering whether to combine a support and custody proceeding with a proceeding about ownership of the matrimonial home. The Court found that it was in the interests of justice to combine the cases – “the balance of convenience favours an order to combine” – based on the following:
(a) the dispute over ownership of the home raised the same issue as the support and custody issue, with the same evidence to be led;
(b) there was a risk of inconsistent judgements;
(c) though the family law case is more complex because it had more issues, the question of ownership of the home is an isolated issue;
(d) having two proceedings may frustrate the goal of having family law disputes resolved in a timely manner (this is important when custody, access, and support are involved);
(e) both proceedings in beginning stages; and
(f) with two proceedings, there are duplicate legal fees.”