The case involved a complex Matrimonial dispute between a couple married for almost 30 years, who owned farmland and cattle (the “Matrimonial Action”). In 2016 the parties entered into a Settlement Agreement (the “2016 Agreement”) which had only been partially performed. The husband, Donald, applied for enforcement of the 2016 Agreement. Further, Donald applied to consolidate the Matrimonial Action and a separate Action involving the parties’ children and the division of cattle (the “Cattle Action”). Donald also requested permission to amend his Statement of Defence and file a Counterclaim.

In considering Donald’s Application to consolidate, the Court considered Rule 12.5, which states that spouses and former spouses are presumed to be the only parties to a Matrimonial Property Action except where another person is a necessary party for the division of property. Justice Lew interpreted this as contemplating the inclusion of third parties to a divorce matter. The 2016 Agreement dealt with property distributions to the children and thus, Lew J. held that it was appropriate for the children to be added to the Matrimonial Action by way of consolidation.

In considering Donald’s Application to amend his Statement of Defence and file a Counterclaim, the Court considered Rules 3.62(1)(b)(ii), 3.65, and 1.4(2)(f). The Court held that Donald had two years from the date of the Divorce Judgement, which was dated August 1, 2024, to file a Counterclaim for division of matrimonial property. The applicable Limitation date was therefore August 1, 2026. Justice Lew ultimately allowed Donald’s Application to amend his Statement of Defence and file a Counterclaim because it was not Limitations barred. 

In response to Donald’s Applications, the wife, Viva, cross-applied to dismiss Donald’s Applications for long delay pursuant to Rules 4.31 and 4.33 of the Rules of Court. Justice Lew acknowledged that parties to litigation have an obligation to advance an Action pursuant to Rule 4.2. Lew J. held that negotiation and entering into and honouring a settlement agreement significantly advanced the Action, in accordance with Rule 4.33. The Court determined that it was unreasonable to expect Donald to have taken further steps in the Action when the 2016 Agreement was meant to substantially resolve the issues between the parties. Therefore, Viva’s Cross-Application for delay was dismissed.