Plaintiff Not Permitted to Add Family Law Claim After Expiry of Limitation Period

The case of Malik v. Nikbakht indicates that, if an injured plaintiff wants to advance a claim under the Family Law Act, it must be done within the limitation period.

Justice Cavanagh overturned a decision of a master.  The master had applied authority of a single judge of the Divisional Court, Justice Moore.

Justice Moore had concluded that a Family Law Act claim is only a head of damages, not a new cause of action. Therefore, the plaintiff was permitted to amend the claim to add a Family Law Act claim after the expiry of the limitation period.

Justice Cavanagh disagreed with Justice Moore, stating that a Family Law Act claim is a new cause of action and must be brought within the limitation period. He held that the plaintiff’s Family Law Act claim was statute-barred.

Further, Justice Cavanagh indicated that a Superior Court judge has “coordinate jurisdiction” with a single judge of the Divisional Court.

He noted that “…decisions of a court of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them…[T]he judgment should not be followed…where the subsequent judge is satisfied that the first decision was plainly wrong.”