Court File and Parties

Court File No.: FS-24-042009-0000 Date: 2025-07-30 Superior Court of Justice - Ontario

Re: Daniel James Blais, Applicant (Moving Party) And: Ann Marie Crawford, Respondent (Responding Party)

Before: L. Brownstone J.

Counsel: Todd Burke and Joseph Slavec, for the Applicant Martha McCarthy and Bridgette Barsalou, for the Respondent

Heard: July 29, 2025

Endorsement

Introduction

[1] The parties met in the early 2000s when the respondent wife was the applicant husband's psychotherapy patient. They moved in together about seven years after the end of the psychotherapeutic relationship and married a year later.

[2] The parties separated in 2023, after which the husband began family law proceedings seeking divorce, support, and equalization. In the same proceeding the wife seeks, among other things, unequal division of property and damages for breach of fiduciary duty and intentional infliction of mental distress. The mental distress is alleged to include coercive control including financial, social, and sexual control.

[3] The husband moves to bifurcate the proceedings, separating the claims arising out of the professional relationship from the family law proceedings and having the professional liability claims heard in civil, not family, court. He asks that the professional claims be subject to the Rules of Civil Procedure regardless of whether they are bifurcated.

[4] The wife opposes bifurcation, arguing that the claims are inextricably linked.

[5] For the reasons that follow, the husband's motion is dismissed.

Governing Principles

[6] The parties agree on the legal principles and rely on several of the same cases.

[7] Rule 12(5) of the Family Law Rules provides:

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.

[8] Similarly, rule 5.05 of the Rules of Civil Procedure permits the court to order separate hearings where joinder of multiple claims may unduly delay or complicate the hearing. Rule 6.1.01 of the civil rules permits the court to order separate hearings on one or more issues in a proceeding and sets out factors for the court to consider in making such an order.

[9] The objectives of both sets of rules encourage orders that lead to fair procedures that save time and expenses, and are, above all, proportionate.

[10] Section 138 of the Courts of Justice Act R.S.O. 1990, c. 43, provides that, "[a]s far as possible, multiplicity of legal proceedings shall be avoided."

[11] The parties agree that the husband as moving party bears the onus, on a balance of probabilities, of proving bifurcation is appropriate. If he meets that burden, the responding party wife bears the onus of proving prejudice on the same burden. The parties agree on the factors to be considered in determining whether bifurcation is just and convenient. Similar factors are set out by the court in Simioni v. Simioni, a case on which both parties rely, at para 17 and in rule 6.1.01(2) of the Rules of Civil Procedure.

Position of the Parties

[12] The applicant argues that bifurcation is appropriate for five reasons: the allegations are temporally distinct; the adjudication will be made on different principles and different factual records; the treating relationship and any misconduct that is found to exist (which he denies) can have no bearing on the distribution of net family property and is therefore not interwoven with the family law proceeding; bifurcation will increase efficiency and reduce costs; and there is no prejudice to the respondent from bifurcation.

1) Temporal Distinction

[13] The husband argues that the matters are temporally completely separate. The husband acknowledges treating the wife briefly in 2002-2003. However, his position is that the parties did not start dating until 2008, rendering the treating relationship irrelevant to the family law proceeding.

[14] The wife claims that the treating relationship overlapped with the romantic relationship. The wife alleges that she was a patient of the husband in his psychotherapy practice, first with her then-spouse and son, then as an individual patient. She states that the husband treated her from 2001 to 2003 for sexual trauma she experienced as a teenager and for panic disorder. She alleges that the husband told her to leave her marriage and initiated a sexual relationship with her in 2003 during therapy. The therapy ended at the husband's suggestion and the sexual relationship continued. In 2009 the husband left his former spouse, the parties moved in together in 2010, and married in 2011.

[15] The wife claims that the relationship, and the applicant's conduct, must be viewed on a continuum in order to understand her family law claims. She takes the position that the applicant gained power and control over her starting at the very genesis of the relationship, grooming her into a continued relationship in which he exercised coercive control. His control started in the early years of their relationship and continued throughout the marriage. Any attempt to separate the conduct by a date is arbitrary.

2) Different Principles and Different Factual Records

[16] The applicant argues that the legal principles related to the professional negligence/breach of fiduciary duty allegations and those that relate to the matrimonial issues are entirely distinct. Additionally, the professional negligence issue will require expert evidence, possibly third-party records and evidence, and various treatment records, none of which are required for the family law proceedings.

[17] The respondent disagrees. She views the factual record relating to treatment and pre-marital conduct as directly related to her claim for damages for intentional infliction of mental distress, as well as to her unequal division of property claim (a claim to which I will return). The family court is no stranger to applying principles relevant to all areas of the law, given that matrimonial proceedings regularly require the application of diverse areas of the law.

3) Relationship to the Unequal Division Claim

[18] Subsection 5(6) of the Family Law Act provides:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse's failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse's net family property were incurred recklessly or in bad faith;

(c) the part of a spouse's net family property that consists of gifts made by the other spouse;

(d) a spouse's intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[19] The applicant argues that this is a very thin thread on which to tie the proceedings together. He relies on the comments of Blair J.A. in Serra v. Serra 2009 ONCA 105 at para. 71 that the threshold for unequal division is "exceptionally high". The husband argues that the unconscionable conduct has to be connected to property or finances in order to lead to an order being made under s. 5(6). The husband relies on N.R.I.H. v. M.G.S.H., 2015 ONSC 3277, in which unequal division was sought because a spouse had allegedly assaulted the other just before separation. The court stated at para. 291:

[291] There is nothing in paragraph 5(6) that gives the court some general authority to punish a spouse for objectionable conduct by varying his or her equalization payment. The conduct would have to relate to the accumulation of the net family property in some way. The evidence adduced in this trial falls short of establishing that Mr. M.G.S.H. sexually assaulted Dr. N.R.I.H. the night before he left. However, even if that finding had been made, the court cannot impose a financial punishment on him by varying his share of the net family property, as that conduct was not related in any way to the property that the parties had on the date of separation.

[20] The husband points out that the case relied on by the respondent, Lang-Newlands v. Newlands, 2024 ONSC 6285, 10 R.F.L. (9th) 310, 2024 A.C.W.S. 5920, at para. 778 (d), dealt with forgery, conduct that clearly went directly to the financial issue.

[21] The respondent's position is that the treating and post-treating pre-marital conduct is directly relevant to the financial issues between the parties. The respondent's pleading alleges that the applicant's control over her pre-dated the marriage and led her to make financial contributions and decisions that should result in unequal division. She argues the conduct meets the unconscionability threshold in s. 5(6).

4) Increased Efficiency and Reduced Costs

[22] The applicant argues that permitting the claims to be separate will increase efficiency and reduce costs. The applicant has two sets of counsel – insurance counsel for the professional liability claims and family counsel for the matrimonial claims. It is inefficient and costly for both counsel to have to be present for the entire proceedings, which will encompass facts and argument that will have nothing to do with one counsel or the other for significant portions of the trial. Any overlap in evidence will be minimal. Further, it is the appropriate time to separate the proceedings, as there has not yet been exchange of documents or questioning. The family law case does not depend on the outcome of the professional liability case, so there will be no delay. The family law case can proceed more efficiently, as it will not be bogged down by issues related to the professional liability file. The length and complexity of the family law proceeding will be reduced.

[23] The respondent argues the bifurcation would lead to unnecessary and expensive duplication of evidence. It is not a case in which severing the two claims and allowing one to be resolved first has the likelihood or even possibility of streamlining or obviating the need for the second claim. Determining the professional liability claim will not render any of the family law claim moot or unnecessary. There is no benefit to a stepwise approach. Nor would fewer judicial resources be expended. On the contrary, two judges would be hearing overlapping evidence.

5) Prejudice

[24] As stated, the parties agree that prejudice is considered if the moving party meets his burden of showing bifurcation is appropriate. In that case, the burden shifts to the responding party to prove prejudice. The applicant argues there is no prejudice to the respondent. He disagrees that the respondent will have to testify about the genesis of her relationship with the applicant twice if the matters are bifurcated. Because the therapeutic relationship is irrelevant to s. 5(6), the wife will not have to testify about that part of their relationship in the family law proceeding.

[25] The respondent notes that the applicant is not suggesting that her tort claim for intentional infliction of mental distress be removed from the family law proceeding. Therefore, she will have to testify twice about the same conduct, even if the applicant is correct about s. 5(6), which she disputes. Counsel will have to attend two separate trials. The real prejudice is forcing the respondent to testify twice about overlapping matters. The respondent does not agree with the applicant's characterization of the overlapping facts as minimal.

Analysis

[26] I agree with the applicant that the rule in favour of avoiding a multiplicity of proceedings is not absolute. However, applying the factors argued by the parties, I find that the most just, efficient, expeditious, and proportionate way forward in this dispute is to have the matters heard together.

[27] The respondent's conception of the family law case differs from that of the applicant. She may or may not succeed in establishing her version of events. However, she is entitled to put that version forward and have a court rule on it. In her view, the matters are intertwined. She intends to testify about the entire relationship between the parties in the family law proceeding. She intends to do so even if bifurcation is granted, because she views the entire relationship as important to proving her case of control and intentional infliction of mental distress in the marriage. That is, even leaving aside her claim under s. 5(6) of the Family Law Act, the evidence regarding the applicant's pre-marital conduct will form part of her case. There is no reason for her to have to testify about those issues more than once, and no reason more than one court has to assess that evidence.

[28] There is no reason a single factual record cannot be prepared for this case. Both cases are about the relationship between these two parties. There is no danger of third parties being dragged into litigation that does not involve them. While it may be more convenient for the applicant's counsel to have separate trials, it will undoubtedly be more convenient for the respondent's counsel to have one.

[29] This is also not a case in which resolving one of the claims will have a salutary effect on the length or complexity of the other. I agree with the respondent that there is nothing to be gained in this case from a "stepwise" approach.

[30] I wish to address two arguments made by the respondent that I do not accept. I do not find any basis in the record before me to conclude that the very bringing of this motion was an improper litigation tactic. While I have not acceded to the applicant's request for bifurcation, I do not find that this motion was brought for any improper reason.

[31] Nor do I find there was a problem with the record put forth by the applicant. Given that the issue before the court is a procedural one, and the substance of the claims are not being adjudicated in this motion, there was nothing improper about the applicant putting forth a lawyer's affidavit setting out the chronology and relevant documents.

[32] I turn to the alternate relief sought by the applicant. He asks that, in the event the claims are not bifurcated, the court still order that the Rules of Civil Procedure govern the professional liability portion of the claim. Counsel argued that the civil rules provide for a more robust proceeding. He characterized the Family Law Rules as remedial and the Rules of Civil Procedure as adversarial. He believes the professional liability claims would benefit from case management, a discovery plan, possible cross examination on affidavits of documents, productions and discovery of non-parties, and time limits on examinations.

[33] I do not agree that this is appropriate or necessary. There are ample procedural protections and options in the Family Law Rules. Litigation is to be conducted proportionately, whether in the civil or family courts. I am confident that appropriate procedures are available to the applicant within the family law rules. There is nothing to be gained and much to be lost in complicating the matter by importing different rules for a portion of the claim.

Disposition

[34] The motion is dismissed. The parties are encouraged to agree upon costs. If they cannot agree, the applicant may deliver three pages of costs submissions, plus a costs outline, by August 7, 2025. The respondent may respond with the same page limits by August 14, 2025, to be sent to my judicial assistant at Linda Bunoza@ontario.ca.

L. Brownstone J.

Date: July 30, 2025