Gelman & Associate's statement regarding COVID-19 - Read More

When couples decide to separate, it’s not uncommon for there to be hard feelings between the parties. There may even be litigation beyond the outcomes directly associated with the separation or divorce, though stemming from the same set of facts. In a recent decision from the Ontario Superior Court of Justice, the courts were asked by the husband to join a civil suit with the divorce proceedings so as to allow him to not face two lawsuits.

Doctor-patient relationship turns romantic

The spouses, referred to as “MHG” and “RJB” were both involved in heterosexual relationships and had children with their former partners. They met in 2009 when RJB, a physician, met with MHG, who approached him as a patient, seeking his advice about his sexuality.

The two eventually began a romantic relationship. They moved in together in 2010, and later that year became married. They separated in the summer of 2017.

Following their separation, MHG began divorce proceedings, seeking spousal support, equalization of net family property, a 50% interest in RJB’s property, and exclusive possession of some household items.

Plaintiff later commences civil action

Two months after filing the divorce application, MHG commenced a civil action containing similar allegations set out in the divorce, “including improper doctor patient relationship, a pre-marital predatory sexual relationship, breach of trust, financial dependency and financial losses and hardship arising out of the relationship.” In this case, though, MHG sought general and special damages, compensation for loss of income and earning capacity, cost of future care, and punitive damages.

Although the damages in each filing are different, the facts behind them are the same. As a result, RJB sought to have the actions joined.

Should both matters be heard together?

The court stated that one of the principles enshrined in the Courts of Justice Act is to avoid a multiplicity of legal proceedings when possible. With that said, the court also noted that the principle is not rigid, and courts may divert from it if it would make a single litigation too unwieldly, impractical, or unfair.

In its decision, the court shared that while tort claims are available in family litigation, they don’t always sit comfortably alongside the remedies available within family law. In addition, benefits available under family law may reduce or eliminate the loss that might otherwise be addressed by tort liability, which means that joining the actions might mean the plaintiff cannot access remedies otherwise available through a tort action.

The court summarized the differences as follows,

“Divorce law concerns itself with the dissolution of marriage, rectifying economic disadvantages resulting from the marriage, relief of economic hardship resulting from marriage dissolution and promoting the economic self-sufficiency of each spouse.  It is statutory law only applicable to spouses and former spouses. As mentioned, family law procedures encourage dispute resolution and family law statutes provide remedies that are largely independent of fault.

“Tort law by contrast is quintessentially concerned with shifting losses suffered by one person to another person based on assessments of fault and causation. It provides compensation for losses which cannot be mitigated and are causally connected to a wrongful act or omission.  It is largely the creature of the common law and evolved primarily to reallocate losses amongst strangers.  Although it is subject to the possibility of case management and to court mandated dispute resolution processes, tort litigation can be seen as an exemplar of the adversarial system.”

As a result, the court allowed the MHG to pursue both the divorce and the civil claim separately.

At Gelman & Associates, our diverse group of experienced divorce lawyers strives to provide clients with the information they require to make educated decisions. In addition to the extensive web-based resources available to our clients, all prospective clients are given a comprehensive family law kit during their initial consultation, with ample information and resources to help individuals understand and navigate the separation and divorce process. We also offer our clients a free consultation with a psychological professional. In order to be accessible to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.