Civil conspiracy claims in family law

Waters v. Michie, 2011 BCCA 364 is an appeal from an order striking the appellant’s plea of conspiracy against her former husband and his current wife in a family law action. It contains a useful statement of the law regarding civil conspiracy and also a caution that the claim is to be used rarely, especially in the family law context. In Frame v. Smith [1987] 2 S.C.R. 99, the Supreme Court of Canada cautioned against extending the tort of conspiracy to the family law context. These comments are authoritative as guidance in considering applications to strike pleadings of conspiracy in family law cases. The appellant’s conspiracy claim raises these policy issues, which guide the Court in considering whether her claim of conspiracy should be struck as raising no reasonable claim. The appellant’s conspiracy claim for injury from frustration of the proper calculation of child support is comprehensively covered by child support legislation, and discloses no reasonable claim. The Court holds:

[22] In Frame v. Smith, the Supreme Court of Canada considered whether a parent had a cause of action against his former spouse and her present husband for interfering with his right of access to the children of the marriage. The chambers judge struck the claim as disclosing no reasonable claim, a decision affirmed by the Ontario Court of Appeal. Justice La Forest, writing for the majority of the Court, dismissed the appeal. While he considered there were good policy reasons why no cause of action should lie in such circumstances, La Forest J. ultimately disposed of the appeal on the basis that the legislative scheme governing custody and access was comprehensive. By providing remedies to enforce custody and access obligations and failing to include recourse by civil action to the courts, the legislation precluded a civil action for damages for breach of access rights. Justice Wilson, dissenting, would have permitted a claim for breach of fiduciary duty to proceed to trial.

[23] In comments with which La Forest J. expressed agreement, Wilson J. indicated that she would have struck the plaintiff’s claim in civil conspiracy on the basis of her view that the tort of conspiracy should not be extended to the family law context. She cited criticism of the tort of conspiracy and suggested that the tort’s application in the family law context would not be consistent with the tort’s rationale, which is to respond to situations where an act undertaken in combination creates a harm that would not exist were the same act undertaken by an individual actor (at 125). Of “paramount concern” to Wilson J. was that extending civil conspiracy into the family law context would not be in the best interests of children. She considered the tort would “do little to encourage the maintenance and development of a relationship between both parents and their children”, and might be abused by a malicious spouse because of its “low threshold of actionability” and because success will tend to turn on issues of credibility. Justice Wilson was also concerned that, if permitted in that case, it might be difficult to restrict the tort to the area of custody and access, noting that acts contributing to marriage breakdown might be actionable in conspiracy (at 126.) Expressing his approval of these comments, La Forest J. added that no pecuniary interest was engaged in that case (at 109).