What is an amended application (or amended answer)?

If you do not include a claim that you would like to add after you have submitted an application, you are able to do so through a process of amending your application, essentially changing it; it will be referred to from there on out as the amended application (or answer). Amendments are necessary if you want to remove or add a claim or to add or remove certain facts. 

What is leave of the Court and is it required to amend an application or answer?

Leave of the Court means that before someone is able to begin with a certain kind of proceeding, file certain documents, or proceed in a particular way, they must receive permission from the Court. Basically, it is when the Court gives someone permission to proceed with something. To amend an application or answer, you need the other party’s consent and/or the Court’s permission. 

How do you get consent to amend your pleadings if other party will not consent?

To receive consent to amend your pleadings (application, answer, or reply), you have to receive permission from the Court. It will likely be accepted unless it disadvantages the other party. The Ontario Family Law Rules covers this topic: 

(3) On motion, the Court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.  O. Reg. 114/99, r. 11 (3).

So unless your amendment disadvantages the other party that an adjournment or costs would not compensate, your amended pleading will be accepted. Also note that if your application has not received an answer yet, you do not need permission to amend it.

What rule in the Family Law Act covers amendment of pleadings?

Rule 11 of Ontario’s Family Law Act covers amendment of pleadings. Here they are, summarized, but you can see them word-for-word for yourself if needed here: https://www.ontario.ca/laws/regulation/990114#BK30

• Amending an application without the court’s permission

• If no answer filed yet, then file an amended application in the matter of rule 8 (starting a case)

• If an answer has been filed, then file an amended application in the matter of rule 8, and filing consent of all parties to the amendment

• Amending an answer without the court’s permission:

• If an application has been amended, then serve and file an amended answer within 14 days after you are served the amended application

• If the application was not amended, then serve and file an amended answer, also filing the consent of all parties to the amendment

      2.1. Child protection, amendments without court’s permission

• The applicant can serve/file an amended application, amended plan of care, or both, and:

• The respondent can serve/file an amended answer and plan of care, but keep in mind this is no later than

• 30 days after being served under clause (a), if service was within Canada or the United States of America

• 60 days after being served under clause (a), if service was outside Canada or the United States of America

• Amending application or answer with court’s permission

• You can amend an application or answer with the court’s permission, as long as it does not disadvantage the other party in a way that costs or an adjournment would not compensate

      3.1. Claim relating to decision-making responsibility, parenting time or contact

• If an application or answer is amended to include a claim about decision-making responsibility, parenting time, or contact not in the original application or answer, then the amended application or answer has to be accompanied by the applicable documents in rule 35.1.

• How amendment is shown

• You have to underline any of the changes made, and also note in the margin of each amended page the rule/order that permits the amendment, also including the date of the amendment

How do you show the amendment? Also name the rule that governs that.

Rule 11(4) of the Family Law Rules governs how you would go about showing an amendment. It says that to show the amendment(s) made, you must underline any changes made, as well as noting in the margin of each amended page the rule/order permitting the amendment with the date of said amendment. 

What does it mean there may be cost consequences to amend your pleading?

If you need to amend your pleading, the other party may be required to revise their reply, or even make a new one, so you may be required to pay the costs for this.

What does it mean to strike pleadings?

According to rule 1(8) Family Law Rules, if you fail to follow an order, then the Court can deal with this failure in any way that it thinks is necessary for a fair determination of this matter, which could include striking the pleading(s) filed by the non-compliant party. Striking pleadings is a very serious remedy. Typically, striking a pleading is a last resort, and things will try to be sorted long before this remedy is applied. Basically, if a party has their pleading struck, their side will no longer be heard for the case. You should always carry out your obligations. Make sure to complete everything on time. 

For an example, we can look at a case from 2018, Milutinovic v. Milutinovic, where one party had their pleading struck. The wife was seeking a strike in her husband’s pleadings; he had not been following court orders and submitting things as needed. Just to give one example, he waited 11 weeks after having a payment ordered to request funds from his bank; not including this breach, he had made 5 other breaches. All things considered, his pleading was indeed struck, so he could no longer participate in their divorce trial. 

Another case is Manchanda v. Theti from 2016; to keep it brief, the husband breached orders from the Court, so the wife was of the opinion that his pleading should be struck under Family Law Rule 1(8). The judge agreed, and the husband’s pleading was struck.