The old saying of “time is money” can be especially applicable to litigation. In family law cases, it’s not uncommon for litigation to drag out for lengthy periods of time, costing those involved money that could sometimes be saved by employing the method of mediation instead. In a recent case heard by the Ontario Superior Court of Justice, the court heard from a woman who was seeking pre-judgment interest against her former partner for the time leading up to the trial.

The family background

The couple were married on October 6, 1995. They separated on September 12, 2016. The husband was employed in the federal public service, while the wife was a civilian employee of the RCMP.

The wife commenced an application in May 2017 seeking custody and support for the three children of the marriage. She also sought spousal support. She filed for divorce on September 17 2018, and in doing so amended her original application to seek retroactive and ongoing child support. She also withdrew her claim for exclusive possession for the matrimonial home.

By the time the couple arrived in court, they had resolved all of their issues except for the equalization of their net family properties. One of the more interesting aspects of the issue was the wife’s claim for pre-judgment interest.

Pre-judgment interest

The wife sought an order for pre-judgment interest dating back to the date of her original application, which was May 19. 2017. However, the court noted that she did not plead for a divorce in that application. The application for divorce was only made on September 1, 2018.

The husband agreed that the wife would be entitled to pre-judgment interest, but argued the court had discretion over how far back the interest should be applied.

The legislation

The court noted that Section 128 of the Courts of Justice Act provides that “a person who is entitled to an order for the payment of money is entitled to claim and have included in the order an award of interest thereon at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order.”

The court then referred to Section 130(2) of the Act, which explains the court may take into account amongst other things ,the circumstances of the case, the amount claimed, and the conduct of the parties.

The court found that the amount being claimed by the wife was not outside of the husband’s ability to pay, finding further that the husband’s conduct was responsible for the length of the trial.

The court determined that the facts before it entitled the wife to pre-judgment interest, but dated it back to September 17, 2018, which was the date she filed for divorce, as opposed to the date being requested.

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