In a ten-year marathon of family litigation between 2009 and 2019, the battling Michie’s were in the Court of Appeal six times and visited the Supreme Court 13 times. (Waters v. Michie 2011 BCCA 364) Ms. Michie’s litigation arsenal included a claim in conspiracy where she alleged that her former husband’s transfer of two properties to his second wife, purchased after the parties divorced, was designed to deprive her of her interest in the properties; affect her claim for child support by fraudulently reducing Mr. Michie’s income and assets; and hindering her ability to enforce and collect child support.
Mr. Michie filed an application seeking to strike the conspiracy claim as disclosing no reasonable claim, a position upheld by the lower court. Ms. Michie appealed.
The appellate court adopted Madam Justice Wilson’s admonition in Frame v. Smith, 1987 SCC 74 that a conspiracy claim in relation to children’s issues, was not in a child’s best interests. However, the appeal court also examined whether Frame v. Smith stood for the proposition that conspiracy claims ought not to be permitted, as a matter of policy in a family law action, finding it did not, but dismissed the former wife’s appeal. In respect of claims related to children the court stated:
“…there are public policy reasons for not extending the tort of conspiracy beyond the legislative framework. We live in a world of serial monogamy…To suggest… a conspiracy would mean that any time a former spouse wants to escalate litigation or obtain documents of the new spouse who has no child support obligations, he or she could embroil the new spouse in litigation and require the new spouse to disclose his or her own private financial affairs.”
The appeal court also cited Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. 1983 Canlii 23 SCC where where the tort of conspiracy was described as a “commercial anachronism” and only “survives our law as an anomaly”, destined for eventual demise.
But not so fast…newer cases have expanded conspiracy claims in family law cases. Their expected demise may be averted. Watch here for the latest decisions on the tort of conspiracy.
**This is an excerpt from an article first published The Verdict, a publication of Trial Lawyers of BC.