Date: 12 Dec, 2019| Author: Fred Streiman

The Court of Appeal on a number of occasions as well as Trial Judges at most opportunities speak of the importance of plain language both in the written material presented before it and in their own decisions. However, human beings are loathed to waste the wealth of the English language in which magical words convey a meaning in a distinct and elegant fashion.

Exhibit A, the word “Bifurcation”. Bifurcation is a fancy term for a two-step process. It may appear esoteric, but it is a phrase and process that frequently arises in family law. One prime example is a disgruntled party trying to set aside the terms of an earlier signed Separation Agreement or Domestic Contract. The evidence and test for setting aside such an agreement is very different from the evidence and issues that need to be examined should setting aside be successful so that the court can largely start afresh. Starting afresh often infers looking anew at the financial evidence or other facts that need to be weighed before a new decision can be made. Often the party resisting an effort to set aside a previous agreement argues that bifurcation should apply as that will save the court a great deal of time and effort not to mention concealing private information that can remain private should the existing agreement stand. This has been discussed in a number of cases, including Cohen² a 2019 decision of Justice Oudete of the Ontario Superior Court, which examines Section 56 (4) of the Family Law Act which in turn harkens back to the LeVan² 2008 Ontario Court of Appeal decision.

LeVan stands for a number of propositions, including the importance of full financial disclosure and a lack of undue pressure.

That case dealt with a marriage contract and as this author has stated more than once, the greatest protector against setting aside an agreement is that it was fair in the first place. The court looks at a number of factors, including true independent legal advice; was the party seeking to set aside the agreement represented by an experience family law lawyer? One must also look to the importance of the Supreme Court of Canada decision in Hryniak v. Mauldin.

In Ontario it is Rule 12 (5) of the Family Law Rules that permits the court to bifurcate a case. That in turn takes us back to the Simioni² 2009 decision. For bifurcation to take place, the court is to examine the following issues.

  • Are the issues for the court relatively straight forward and the extent to which the issues proposed for the first trial are intertwined with those that will arise in the second?
  • Whether a decision from the first trial will likely put an end to the action or significantly narrow remaining issues or will significantly increase the likelihood of settlement?
  • Where resources have already been devoted to all issues.
  • Where bifurcation would cause any delay.
  • Advantages prejudiced if bifurcated.
  • Whether the severance is sought on consent or over the objections of one or more parties.

Justice Julie Oudete in Cohen² once again gives an exhausted review of the law when bifurcation is sought and the question of interim temporary spousal support is involved. An important decision whenever the question of bifurcation is on the horizon.