“Rule 12(5) of the Family Law Rules provides that the court may combine two or more cases if it would be more convenient to hear them together.
The jurisprudence indicates that, in relation to consolidation or trial together of a family and a civil proceeding, courts have considered rule 6 Of the Rules of Civil Procedure by analogy pursuant rule 1(7) of the Family Law Rules as it is more particularized and instructive (see Cruikshank v. Bastien, 2012 ONSC 7169 at para. 11-12 and Malkov v. Stovichek-Malkov, 2015 ONSC 4836 at para 13).
Rule 6.01 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 occurrences; or
(c) for any other reason an order ought to be made under the rule
the court may order that the proceedings be consolidated or heard at the same time or one immediately after the other.
In assessing whether there is a question of fact or law common to both proceedings, the focus is on whether the proposed common issue has sufficient importance in relation to the other facts or issues such that it would be desirable that the matters be consolidated, heard at the same time, or after each other (see Canadian National Railway v. Holmes, 2011 ONSC 4837 at para. 43).
The court is to follow a two-step process in determining whether to make a consolidation order or an order for a trial together. First, the court will consider whether the criteria defined by the rule have been satisfied, and then consider whether the balance of convenience favours such an order (see Canadian National Railway at para. 43).
At para. 14 of Malkov Healey, J. set out a list of factors that should be taken into account at the second stage when considering a request to consolidate proceedings or order them to be tried together, derived from a longer list of factors set forth in Canadian National Railway at para. 44. The list of factors from Malkov is as follows:
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 the issues in one action are relatively straightforward compared to the complexity of the other action;
d. 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;
e. The litigation status of each action;
f. Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.”