What is Bifurcation in family law proceedings? It is a procedure where instead of having one trial, the court splits it into two separate hearings.
General Principles Regarding Bifurcation
Section 12(5) of the Family Law Rules provides that if it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly (Family Law Rules, O Reg 114/99, r. 12(5)).
As a general rule, the courts try to avoid multiplicity of proceedings. However, there are instances where courts can serve the interests of justice by bifurcation of the issues. It should not lead to any prejudice to either party. (Shulman v Ganz 2015 ONSC 3254, [2015] W.D.F.L. 3480 at para 24.).
Case of Simioni v Simioni
Both Family Law Rules and the inherent jurisdiction of the Court provide ample authority and power to split cases. Quigley J. in Simioni v. Simioni at paragraphs 15-17 provides a helpful analysis of the legal principles:
- First, it should be accepted as non-controversial that both the Family Law Rules and the inherent jurisdiction of the Court provide ample authority and power to permit cases such as this to be split: Family Law Act, section 2(10); Rule 12(5).
- The jurisprudence confirms that this is an authority and power that ought to be exercised if convenient, and if the exercise of the power would be in the interests of justice. The interests of justice will be served if there are clear time and expense benefits to be gained from the bifurcation and determination of the threshold issue, provided no real or meaningful prejudice is caused to either party: Elcano Acceptance Ltd. et al v. Richmond, Richmond, Stambler & Mills, 1986 CanLII 2591 (ON CA), [1986] O.J. No. 578 (O.C.A.); General Refractory Companies of Canada v. Venturedyne Ltd., [2001] O.J. No. 746 (S.C.J.O.); Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Ont. Ct. Jus.(Gen. Div.)).
Case of Simioni v Simioni Continued
- Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowly circumscribed and to be exercised in only the clearest of cases – in cases that exhibit the exceptional merit that calls upon the Court to exercise its inherent power: Courts of Justice Act, section 138; Elcano, above; Carriero (Litigation Guardian of ) v. Flynn, [2004] O.J. No. 3117 (S.C.J.O.). In light of this caution, the onus necessarily lies upon the party seeking to bifurcate to satisfy the Court on a balance of probabilities that if granted, severance will result in the “just, expeditious and least expensive determination of the proceeding on its merits”.: Merck & Co. v. Brantford Chemicals Inc., 2004 FC 1400 (CanLII), [2004] F.C.J. No. 1704 (F.C.C.) at para 4.
Case of Simioni v Simioni Final Quote
- There are a number of questions the Court should consider in deciding whether the severance of the trial in this instance is just and expeditious. These include whether the issues for the first trial are relatively straightforward and the extent to which the issues proposed for the first trial are interwoven with those that will arise in the second.
- They include whether a decision from the first trial will likely put an end to the action, significantly narrow remaining issues, or significantly increase the likelihood of settlement. They include the extent to which resources have already been devoted to all issues, the possibility of delay, the advantages or prejudice the parties are likely to experience and whether the severance is sought on consent or over the objections of one or more parties: see General Refractories Co. of Canada, above at para. 16. However, as Himel J. noted there, emphasizing the observations of Wilkins J. in Royal Bank v. Kilmer, above, the focus of these questions on expediency does not displace fairness and justice as the dominant considerations.
Conclusion
All in all, it is important to have a knowledgeable lawyer. Such lawyer should be able to explain the risks of requesting a bifurcation in family law cases. He/She should still know when it could be beneficial to request a bifurcation and will not be afraid to push with the motion hearing to achieve the goals.
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