The Applicant, Mr. Carew, applied to dismiss an Action for divorce and division of matrimonial property (the “Action”) for delay under Rule 4.33. The Application was in response to an Application for child support brought by the Respondent, Ms. Boland (the “Support Application”). The initial pleadings in the Action were filed in 2010. Mr. Carew submitted that the last significant advance in the Action was the filing of the Statement of Defence and Counterclaim in February of 2010.

The Respondent argued that, around the time the initial pleadings were filed, the Parties had arrived at an agreement without the necessity of further Court involvement. Both Parties had conducted themselves in accordance with that agreement, which covered the payment of child support, until July of 2017. It was at that point that Mr. Carew unilaterally stopped abiding by the agreement. Ms. Boland asserted that, while no formal steps had been taken from February 2010 until the Support Application, the steps taken by the Parties outside of Court were in line with Rule 1.2(2)(c), which encourages parties to resolve a claim themselves, by agreement, as early as practicable.

Sulyma J. reviewed prior authority and noted that there is no limitation period for a divorce Action or a support Application under the Divorce Act, RSC 1985, c 3. Justice Sulyma noted that while Rule 4.33 is applicable to divorce proceedings pursuant to Rule 12.2(2), a gap in the law may arise in certain circumstances since a divorce Action which is dismissed for long delay leaves the parties married and a plaintiff may commence a second Action which would only lead to further delays.

Justice Sulyma considered Rule 4.33(2), and following the functional approach concluded that while there were no formal litigation steps taken to materially advance the Action, Mr. Carew had continued to participate in the Action and had otherwise acquiesced in the delay. The Application to dismiss for delay was therefore dismissed.