I. Amendment of Pleadings

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 547-549

Page 547

A request to amend pleadings may be granted to facilitate a comprehensive resolution of all issues arising from the marriage.⁷³Rule 132 of the Alberta Rules of Court empowers a court to amend pleadings at any stage of the proceeding where it is necessary to determine the real issue between the parties. There are four well-identified situations where an amendment will be refused, namely,

(1) where it would create serious prejudice that an order for costs could not repair; (2) where the amendment would be hopeless; (3) where the amendment would add a new cause of action outside the limitation period for suing; and (4) where the failure to plead earlier, or the amendment itself, involves bad faith.⁷⁴Where an amendment of the pleadings is sought, the court should not enter into the merits of the proceeding but should determine whether a prima facie meritorious case exists. If the amendment reveals a plausible claim, it should be allowed.⁷⁵Four criteria should be satisfied in order for amendments to a pleading to be allowed. They are as follows:

(1) an amendment should be allowed unless it will cause injustice to the other side that cannot be compensated for by costs; (2) the material filed in support of the application must set out a prima facie meritorious case; (3) no amendment should be allowed if it would have been struck out if originally pleaded; (4) the proposed amendment must contain sufficient particulars to enable the other side to answer it. In determining whether there is a prima facie meritorious case, the focus is on the pleadings as distinct from the underlying factual basis for the pleadings.⁷⁶An amendment to pleadings ought prima facie to be allowed, notwithstanding the lapse of time, unless the applicant is acting mala fide or attempting to overreach the opposite party, or unless some injury or injustice will be done to the other side by the amendment that cannot be compensated for by costs.⁷⁷Belated amendment of a notice of motion in a child-related dispute may be justified by the overriding concern that the best interests of the children merit broad investigation and by the availability of an adjournment to eliminate any element of surprise.⁷⁸In Re Pearce, Bouck J., of the British Columbia Supreme Court, observed:

The trend of modern authorities in this Province seems to be that once an action or proceeding has been commenced in the appropriate court which has jurisdiction to hear the substance of the issue or issues raised by the writ or other originating document, then all

Page 548

amendments should be allowed which will properly result in a fair and expeditious determination...