Pleadings include an Application, an Answer, and the Reply.
Often there is a misconception and concern among self-represented parties or new lawyers about amending an agreement. Let us see what the Family Law Rules have to say about this subject.
The Rules provide that if you filed an Application and the other party has not responded yet, then you can amend your Application. The Family Law Rules set out how to do that. In this case, you can amend the Application without the court’s permission or consent from the respondent.
However, if there is an Answer filed by the respondent, then you will need consent from the respondent to make any changes to the Application.
Why would you want to amend the Application?
Usually, you would want to amend if you:
- forgot to include a request that you would like to ask the court, but you did not include it in your original Application; or
- think there are material facts that absolutely must be plead in your Application and you did not include that; or
- maybe you want to remove a claim that you made and no longer want to pursue.
Those are some of the reasons you might want to amend your Application or Answer.
Remember: if there is no Answer filed, you can amend the Application in the form prescribed by the Rules. If there is an Answer, then you need consent from the Respondent.
If you are the Respondent and you want to amend your Answer, then you can do so within 14 days of being served with an amended Application. For instance, you have been served, and the applicant amends their Application, where you previously filed an Answer, you have 14 days to amend your Answer.
What happens where there is no amended Application? In that case, you also need consent from the other side.
For the most part, usually if you want to amend an Application or response or Answer, you will usually need the consent of the other side. Often people are concerned and do not want to give their consent. It is usually out of concern for what the other party wants to do. There is obviously distrust on both sides and there is apprehension that someone is trying to pull a fast one and things like that.
It is important for you to understand that it is almost a right to amend an Application. This right is expressed clearly in the Rule:
On motion, the court shall give permission to a party to amend an Application, Answer or Reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.
A motion is usually the request filed by the party seeking to make the amendment. The Rule essentially provides that the courts will grant a request made on motion by a party, whether it be the applicant or respondent, to amend their Application or Answer; except where granting it will disadvantage the other party in a way that cannot be compensated for by cost or an adjournment.
The mere fact that a person amending their Application would result in a delay in the process or inconvenience you in having to respond to an extra claim that you may believe is frivolous, unnecessary, and disadvantageous to you, will not prevent the court from granting that request. The court recognizes that an amendment may disadvantage you. It is only a disadvantage that cannot be compensated for by way of cost or an adjournment that would prevent the courts from granting the request.
For example, a common concern is if you allow the party to amend their Application and they bring another claim, then you will have to respond to it. Indeed, you do have to respond, however, it is possible that this effort may be compensated for by way of a cost order.
Another example is you may not have time to respond to the additional claim before the next court date; however, an adjournment is a tool that can be used to deal with that disadvantage.
When you are faced with a request for an amendment, unless other factors exist, it is strongly encouraged that you consent. There is no point utilizing court and your resources to ask for the party to be refused an amendment. Remember, the only time that refusal would be justified is if there is a disadvantage that cannot be compensated for by way of cost or an adjournment.
A better strategy, in my opinion, would be consenting to that amendment and then asking for an order for costs to compensate you for the additional resources that you have had to put towards amending your Answer.