Can you take a spouse to the Small Claims Court?
Updated: Jul 5
People are often intimidated by the complexity and costs associated with the family law system. Today I am going to discuss whether spousal claims can be taken to the Small Claims Court instead of Family Court.
1. Common law causes of action: If a claim arises from a common law cause of action, as a general rule, it is actionable in the Small Claims Court. This includes many different causes of action but excludes unjust enrichment, specific details will be outlined bellow.
2. Family Property: If one is seeking family property in a claim, that is property related to a marriage contract, the answer is clear that one cannot take these claims to the Small Claims Court. The good news is that if two people are in a common law relationship, any property owned by the parties is not considered family property and is actionable in the Small Claims Court.
3. Torts: There is good news when it comes to torts. As a general rule, most torts are actionable in the Small Claims Court because they give rise to a common law cause of action.
4. Breach of Contract: Whether a breach of contract action is actionable in the Small Claims Court depends on the nature of the contract. If the contract has to do with a marriage contract, cohabitation agreement, separation agreement, paternity agreement, family arbitration agreement, or family arbitration award then one is clearly not allowed to take that action to the Small Claims Court. Many other contracts between spouses are actionable in the Small Claims Court. Some contracts that would otherwise be family law contracts do not meet the requirements under family law legislation to qualify as family law contracts. For instance, an agreement to live with a common law partner may not satisfy the formalities to qualify as a cohabitation agreement.
If you have any questions about whether your claim can be taken to the Small Claims Court you should acquire legal advice from a legal representative licensed by the Law Society of Ontario.
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Matteau v. Johnson, 2012 ONSC 1179 (CanLII)