To Cross-Apply or Not Cross-Apply

Family law, by its nature, is very unique in the sense that a large part of the process of moving a matter forward via litigation involves applications brought within the course of the proceedings.  In the usual course of civil litigation, a Claim is filed by one party against the other and the parties proceed to engage in pre-trial procedures such as compiling Affidavits of Records and engaging in the discovery process.  Applications that are brought before the Court, prior to the trial being heard, are considered “interim applications” as the relief that is sought, and potentially granted in such applications, is generally only temporary in nature and subject to any final decision of the Court at trial. 

While general civil matters do have interim applications, family law is distinctive in the sense that so much of the relief that is being sought by the parties is typically and commonly sought on an interim basis as a matter of course.  This is generally as a result of the subject matter of family law – because trials are often set to be heard years after the initial claim for divorce is sought, a party seeking a final order will be waiting a significant period of time.  However, when the relief being sought is child support or spousal support, the party claiming these amounts typically can’t wait a number of years to obtain an order for support of that nature – they need to support their children and themselves immediately.  As a result, family law is by and large litigated through interim applications and interim relief.

In this process, one party to the matter typically files an application seeking relief of some kind, be it parenting, or support, for example.  The party who has been served with the Application is considered the Respondent, and has the option of either strictly responding to the Application, or filing a Cross-Application seeking their own relief on the matter.  Recently, it appears that there has not been complete clarity on when it is appropriate to simply respond to an application or cross-apply. 

In a recent Court of Queen’s Bench case, a father brought an interim application for parenting of the child.  The mother responded to this application, rather than cross-applying.  At the interim hearing, Justice Campbell held that she was unable to determine what the original status quo of the parenting situation was as a result of the conflicting evidence of the parties and simply ordered shared parenting as an interim remedy, pending a two-day oral hearing.  The father appealed on the basis that Justice Campbell ordered shared parenting absent the mother having filed any cross-application seeking relief:  Hopkins v Delavin, 2018 ABCA 415.  

In response to the father’s appeal, the Court of Appeal held that it was not necessary for the mother to have filed a cross-application as the father’s own application had put the matter of parenting before the court and therefore he knew that the purpose of the application and the hearing was to set in place a parenting order.  Notwithstanding that the father had applied for primary parenting and the mother had not cross-applied, the Court of Appeal held that the Hearing Justice was not limited to only granting the father’s requested relief or no order at all.  While not expanded upon, it appears that the message of the Court of Appeal is that if a matter is before the court and all parties are aware of the purpose of the hearing, a cross-application is not required for the respondent to seek relief in respect of that particular matter.

This rationale is further supported by the case of Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12 (wherein the Court upheld a summary dismissal order of a lower court, notwithstanding that the Defendant in that matter had not brought an application specifically for summary dismissal.  In Pyrrha Design the Court relied upon the inherent jurisdiction of the Chambers Judge to control the process of the court, along with the express legislative grant of such jurisdiction under section 8 of the Judicature Act, RSA 2000, c J-2 and Rule 1.3 of the Alberta Rules of Court.  The Court of Appeal effectively held that a Court has the jurisdiction to entertain relief not specifically sought in a cross-application.  Many litigants often argue a different position, relying on the Court of Appeal case of Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation), 2012 ABCA 36, interpreting this case to state that a Court cannot grant relief when such relief has not been sought by a party with a properly filed application.  However, this is not the specific holding of the Court in Cold Lake.  Rather, the Court of Appeal in Cold Lake advised that a judge should not take jurisdiction to grant an order that has not been sought by either party with a properly filed application and supported by evidence. 

As such the Court of Appeal in Cold Lake did not state that a Judge cannot grant such relief, but rather, it was recognized that a Court has the jurisdiction to grant such relief, but should decline to exercise this jurisdiction in the absence of a properly filed Application and supporting evidence.  In this regard, Cold Lake does not conflict with Pyrrha Design or Hopkins, as both recognize the jurisdiction of the Court to make such Orders in the absence of actual applications.  Where Pyrrha Design and Hopkins differ from Cold Lake is in the fact that in both Hopkins and Pyrrha Design both parties were aware of the issues that were before the Court and that could be decided on. As stated above, the Applicant in Hopkins knew that a parenting order was being sought by the Court and could not then deride the Court for granting relief in the nature of a parenting order, even if that particular parenting arrangement had not been sought.  In Pyrrha Designs, while the Defendant had not filed explicitly for summary dismissal, the Defendants had:

1. Plead in their Statement of Defence that the claim was without merit;
2. Filed written submissions eleven days prior to the hearing in which they specifically requested that the action be dismissed on a summary basis;
3. The Plaintiff had failed to object to the procedural irregularity of the Defendant seeking summary dismissal in written submissions as opposed to an specific Application; and
4. The Plaintiff responded to the Defendant’s written submissions.

In this regard, the Court in Pyrrha held that the Plaintiff could not say that they were not aware of what relief the Defendant was seeking. 

Ultimately, while Cold Lake is still valid law, it is clear that its admonishment against granting relief not formally applied for is subject to limitations.  As the Court in Pyrrha Designs stated, the purpose of such requirements is to protect litigants from ambush or litigation surprise.  In both Hopkins and Pyrrha Designs, the litigants could not claim surprise as the relief that the Court ultimately granted was clearly relief that was being sought from the Court, even if such relief was not specifically applied for.

Notwithstanding the above, the takeaway from these cases is that cross-applications are not necessary when the relief that is sought by the Respondent is within the realm of that being sought by the Applicant.  However, having stated this, given the historical treatment of applications not specifically applied for, and the typical reliance upon Cold Lake, we would still recommend specifically bringing cross-applications to ensure that there is no confusion on the part of the Court.