The Plaintiff applied for spousal support from the Defendant, who opposed the Application. The Defendant applied to strike the Plaintiff’s claim for division of matrimonial property for long delay. The Defendant filed his Statement of Defence and Counterclaim in April 2015, which was two years after the Statement of Claim was filed. In September of 2015, the Plaintiff provided significant but informal disclosure to the Defendant.

Graesser J. stated that Rule 4.33 did not apply in this case. His Lordship noted that, while merely completing a step in the litigation process, even one required by the Rules, does not necessarily significantly advance the Action pursuant to Rule 4.33, the filing of the Statement of Defence and Counterclaim likely re-started the clock. Further, even if it could be argued that the mere filing of the Statement of Defence and Counterclaim did not advance the Action, Justice Graesser held that, having regard to the functional approach mandated by Rule 1.2, the Plaintiff’s document production did advance the Action, despite the fact that it was informal and subject to trust conditions.

Graesser J. reviewed previous jurisprudence on the interpretation of Rule 4.31 and concluded that its application depends on “whether the delay is inexcusable, whether it is inordinate, and whether there has been prejudice to the applicant”. His Lordship noted that dismissal of an Action for delay of less than three years requires “exceptional circumstances”.

Justice Graesser held that the Defendant waived any delay between the filing of the Statement of Claim and the filing of the Statement of Defence and Counterclaim by proceeding to file the Defence and Counterclaim rather than an Application to dismiss. In addition, Graesser J. held that there was no inordinate delay between the filing of the Statement of Defence and Counterclaim and the Application for spousal support, and that there was no evidence that the delay prejudiced the Defendant. Accordingly, His Lordship declined to dismiss the matrimonial property Action, and found that the Plaintiff’s delay in advancing a spousal support Claim was not inordinate and thus not a bar to having her Claim determined on the merits. Finally, Graesser J. indicated that the parties could seek the assistance of the Court pursuant to Rule 4.10 if they continued to have difficulties managing the litigation.