“Rule 11(3) of the Family Law Rules provides that:
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.
In Moghini v Dashti, 2016 ONSC 2116, the court held that a motion to amend should be allowed unless:
a) the amendment would cause an unjust process that cannot be fixed by an adjournment or costs.
b) the amendment proposed is untenable (i.e. not properly pleaded and not prima facie meritorious in law). or
c) the amendment is made in bad faith.
In Smith v. Smith, 2021 ONSC 1990, Chappel J. recently provided an excellent summary of the legal principles respecting amendment to pleadings in family law. I adopt her analysis and set out the applicable principles in the case at bar:
a) The starting point is Rule 11(3) of the Family Law Rules. (Para. 15)
b) One of the purposes of amendments is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions. (Para. 17)
c) The central question on a motion to amend a pleading is whether the amendment will cause disadvantage to the opposing party that cannot be remedied through costs or an adjournment. Non-compensable prejudice may be actual or presumed. The disadvantage will be actual where the moving party could lose an opportunity or suffer an unjust burden in the litigation as a consequence of the proposed amendment that cannot be redressed through cost or an adjournment. The onus of proving actual disadvantage lies on the party opposing the amendment. Where the opposing party relies on actual disadvantage, they must set out evidence respecting such disadvantage with sufficient particularity to permit the party pursuing the amendment to respond, and to allow the court to take a hard look of the merits of the prejudice claim. (Para. 18)
d) If the delay in seeking the amendment is so lengthy and the justification so inadequate, prejudice to the responding party will be presumed. (Para. 19)
e) In order to avoid a proposed amendment, the non-compensable disadvantage relied upon must be casually connected with the amendment and must not flow from some other source. (Para. 20).
f) A proposed pleading that fails to set out material facts should be refused or the court at a minimum can request more details from the moving party before determining whether to permit it. A proposed amendment that is inflammatory, a waste of time, a nuisance, frivolous or vexatious or an abuse of process should not be allowed. (Para. 21)
g) If the request to amend is motivated by bad faith, the amendment must be refused. (Para. 23).
h) The following general principles apply in determining whether the proposed amendment raises a reasonable claim or defence in law:
(i) The amendment must be granted unless it is “plain and obvious” that it discloses no reasonable claim or defence in law.
(ii) The court must assume that the facts relied on for the proposed amendment are true, unless patently ridiculous or incapable of proof, and the only question is whether the disclosed a reasonable cause of action. It is not necessary for the moving party to tender evidence to support the claims or for the court to consider whether they are able to prove the amended claim.
(iii) General concerns regarding the strength of the factual and\or legal bases for the proposed amendment will not suffice to prevent the requested amendment.
(iv) The court will construe the proposed amendment generously and overlook inadequacies that are merely the result of drafting deficiencies.
(v) Proposed amendments should not be denied as being legally untenable solely on the basis they raise novel legal issues or questions of law that are not yet fully settled. (Para. 22)”