H. Pleadings

AuthorJulien D. Payne - Marilyn A. Payne
Pages545-547

Page 545

See note 61

Pleadings must conform to certain standards. Defective or inadequate pleadings can lead to chaotic litigation that is unnecessarily expensive and protracted. Pleadings serve the following purposes:

· they define the issues in dispute;

· they give notice to the opposing party of the case that must be met;

· they inform the court of the matters in issue;

· they provide a record of the issues raised and prevent further litigation upon matters that have already been judicially determined; and

· they define the scope of discovery.62

Page 546

The object of pleadings is to define with clarity the issues to be determined at trial. A party must plead the facts on which he relies and not the evidence by which the facts are to be proved.63In the course of drafting a pleading, counsel should set forth fully but concisely all of the material facts relied on.64The amount of child support being sought should be specified in the pleadings, although an amendment of the pleadings may be ordered to accommodate a change. In the absence of any such amendment, courts, in applying the former discretionary child support regime, would refuse to order support in amounts exceeding those claimed in the divorce petition.65

Under the former judicial discretionary child support regime, the British Columbia Court of Appeal ruled that, if the only application before the court is one for a reduction of the amount of support and no counterclaim has been made nor evidence led to support any increase in the amount of support, an order for increased support should not be granted.66

A different perspective may arise under the federal and provincial guidelines. Under the Guidelines, it has been held that, where there is no element of surprise, a court may order child support in a higher amount than that set out in the notice of motion.67If all relevant information concerning the income of one or both parties is before the court, there appears to be no apparent reason why the court should not immediately apply the guidelines to determine the appropriate amount of child support. Similarly, it has been held that, on an application to increase child support brought pursuant to section 96 of the British Columbia Family Relations Act,68the court may order a reduction, notwithstanding that no application for such relief has been sought by the obligor. Once the court’s jurisdiction has been invoked, its jurisdiction to vary a pre-existing order is at large and...

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