The Applicant brought an Application under Rule 4.33 to dismiss two Actions involving the same parties dealing with the same subject matter (the “Application”). The two Actions arose from a personal relationship between the Applicant (“Mr. Boucher”) and the Respondent (“Ms. Blackburn”) governed by the Family Law Act, SA 2003, c F-4.5 (the “Act”). One of the Actions was commenced in 2013 (the “2013 Action”) and the other was commenced in 2016 (the “2016 Action”) (collectively, the “Actions”). The question before the Court was whether either or both of the Actions should be dismissed for long delay.

Rule 12.16(1) states that, despite Rule 3.2(1), a proceeding under the Act must be started by filing a Claim in Form FL-10. This requirement operates notwithstanding Rule 3.2(1)(a) which requires that an action be started by filing a Statement of Claim. In other words, Rule 12.16(1) overrides Rule 3.2(1)(a). Ms. Blackburn failed to commence the 2013 Action in accordance with Rule 12.16(1).

To avoid a dispute about procedural matters, and at the behest of Mr. Boucher’s former counsel, the 2016 Action was commenced in accordance with Rule 12.16(1). In 2016, Ms. Blackburn appeared before Graesser J. for an Order joining the two Actions, and Mr. Boucher cross-applied for dismissal of the Actions (the “Joinder Application”). Graesser J. chose not to dismiss the Actions and ordered that the 2016 Action would not be joined with the 2013 Action but rather, that the Actions would be heard concurrently at Trial.

Justice Mandziuk noted that the application of the Rules is guided by Rule 1.2(1), which states that the intent of the Rules is to provide a means by which claims can be fairly and justly resolved in a timely and cost effective way. Mandziuk J. emphasized that this is a fundamental consideration for the Court when dealing with issues that arise as claims make their way through the Court process.

In determining whether to dismiss the Actions, Mandziuk J. found that in the Joinder Application Graesser J. chose not to dismiss either of the Actions but rather indicated that they should be tried together. Justice Mandziuk determined that the Joinder Application, though unsuccessful, significantly advanced both the 2013 Action and the 2016 Action and that three years had not yet elapsed from the date of Justice Graesser’s Decision. Further, because Graesser J. had ordered that the two Actions be tried together (even if not formally joined), Mandziuk J. concluded that any steps taken in the 2016 Action applied equally to the 2013 Action. Accordingly, the Application was dismissed with Costs to Ms. Blackburn.