Examining the utility of Rule 22 and the implications of a request to admit
The Family Law Rules of Ontario are designed “to enable the court to deal with cases justly,” meaning a fair procedure, the saving of time and expense, dealing with cases appropriately and allocating court resources appropriately, as per Rule 2. Perhaps the most daunting task of the system is to save time and money, for both the parties and the court. Rule 22, Admission of Facts, is a great tool in working towards these primary objectives. Rule 22 outlines:
22. (2) At any time, by serving a request to admit (Form 22) on another party, a party may ask the other party to admit, for purposes of the case only, that a fact is true or that a document is genuine. O. Reg. 114/99, r. 22 (2).
By serving a request to admit, participants can narrow the relevant issues greatly, such that court, or litigation, will only be necessary for issues that are categorically in dispute. The husband made use of a request to admit in Meza v Lavie, 2014 ONSC 2247:
In her Response to Request to Admit, [the wife] admitted that the parties jointly owned the matrimonial home…She further admitted that the matrimonial home was sold on September 30, 2010 and that the proceeds of approximately $136,000 are currently being held in trust with the parties' real estate lawyer. She further admitted that [the husband] solely paid the mortgage and property taxes for the home from the date of separation until its sale. [The wife] also admitted that she is readily available to work full-time in Canada. She further admitted that she previously earned income by housing boarders at the matrimonial home but as the home has been sold, this is no longer a viable income option for her.
Consequently, the husband saved time and legal fees by not having to prove various issues in court. After all, without proper and candid communication, it is not always clear what the parties disagree on when there are so many issues in dispute. A request to admit can expedite the process. Granted, there are cases where a party refuses to admit a fact even if it is true, stymieing the benefits of Rule 22. This is where costs consequences come into play. Tarlo v Boyer, 2010 ONSC 4687 states:
…I find that the costs provisions of rule 24, especially rule 24 (5) (a) and (11) (b), are all I need to deal with a just determination of the costs relating to admitting or not admitting facts. The Family Law Rules place great weight on the reasonableness of a party throughout the case, and I think this is more than adequate as an approach to guide my discretion and to do justice on the costs of this issue.
Here the court is stating that, while a request to admit is not explicitly laid out in the costs considerations of Rule 24, it is implied that they are relevant when determining which party is to pay for legal costs and how much they are to pay. Castrichini v. Aquino, 2021 ONSC 6882 shows that where parties purposely mislead the court, or engage in bad faith conduct, the court can take this into consideration in awarding legal costs:
The Respondent has knowingly driven up the costs of this litigation by his ongoing refusals to be honest and forthright with his financial disclosure, thereby causing significant financial harm to the Applicant without justification. This conduct can only be characterized as longstanding and persistent obfuscation, amounting to bad faith.
In this case, the court considered costs on a full recovery basis because of the bad faith conduct. In other words, willfully lying or misleading the other party on a request to admit can have severe financial consequences.
Another benefit of a request to admit is that the recipient is deemed to have admitted the relevant facts if served and having failed to respond within 20 days:
(4) The party on whom the request to admit is served is considered to have admitted, for purposes of the case only, that the fact is true or that the document is genuine, unless the party serves a response (Form 22A) within 20 days,
(a) denying that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine; or
(b) refusing to admit that a particular fact mentioned in the request is true or that a particular document mentioned in the request is genuine, and giving the reasons for each refusal.
Shoukralla v Shoukralla, 2014 ONSC 4209 illustrates a great example of this in action. In short, the husband refused to respond to a request to admit regarding financials and was therefore deemed to admit the truth of the financials. As a result, he was on the hook for a large equalization payment pursuant to those financials:
The Respondent has been given numerous opportunities to respond and to file his own material, including his own revised and current financial and net family property statements, in order to present his own calculations. The Respondent, however, has filed no documentation since January 11, 2011, when his former counsel was removed on her own motion and he has represented himself. The Respondent has provided no evidence to challenge the accuracy and reliability of the Applicant's financial statement or her net family property statement. I am satisfied that it is appropriate to apply rule 22(4) in this case by virtue of the Respondent's failure to respond to the Request to Admit, not just within the statutorily mandated 20 days, but at any time. Consequently, the Respondent is deemed to admit, among other things, the accuracy of the Applicant's net family property statement, dated January 22, 2013.
The Applicant is owed an equalization payment from the Respondent in the amount of $370,890.76.
Obvious takeaways? Court proceedings are expensive and timely. A request to admit can greatly expedite the process by narrowing the legal issues. If parties engage in bad faith conduct and purposely mislead the other party by failing to tell the truth in response to a request to admit, this can impact the costs awarded at the end of the proceeding. Finally, if a party is non-responsive, proper service of a request to admit can move proceedings forward by deeming the recipient to have admitted the facts thereto.