Court Procedure: Family Court vs. Small Claims

Can I take my ex to small claims court?


When starting a court proceeding related to an issue that stems from the breakdown of a relationship, most people will assume that they must bring their matter to the family courts. Sometimes, however, the matter can be brought as a civil claim in small claims court.  In this post, we will discuss the 2016 case of Pilon v. Lavigne 2016 ONSC 1965 and examine when matters should properly be brought in family court and when they should be brought in small claims court.

What’s the difference between Family and Small Claims court?

If you start a proceeding in family court, there are specific rules and procedures you are required to follow. This includes attending a first appearance if necessary, a case conference, any interim motions, and a settlement conference prior to proceeding to trial. This process can be very lengthy and expensive.

Small claims court, on the other hand, deals with matters cheaper, faster, and more efficiently. For example, small claims court allows you to file and issue your documents electronically.

Does my case belong in Family Court or Small Claims?

Whether your case can be brought in small claims court depends on the circumstances of the case, and what you are claiming. If the claim is for property or money and is unrelated to the relationship or cohabitation, you may be able to bring a claim in small claims court.

Important: Currently, you can only bring a matter to small claims if the amount you are claiming is $25,000 or less.

This question was recently analyzed in Pilon v. Lavigne, 2016 ONSC 1965. This case involved a claim for a debt of $12,000 brought in small claims court following the signing of a separation agreement. During the relationship, Lavigne loaned Pilon $24,000, and the parties entered into a loan agreement including a payment schedule. Upon separation, Pilon still owed $12,000 on the loan agreement.

The separation agreement stated that it was to settle all outstanding issues stemming from their separation and included a release of all money owed to the Lavigne. After the agreement was signed, she started an application in small claims court to recover the outstanding amount.  She argued that she had not intended to waive the amount owing under the loan. Pilon argued, among other things, that the case properly belonged in family court due to the fact that the debt stemmed from the breakdown of the relationship.

In order to determine whether small claims was the appropriate court, the judge had to decide the “true character or nature” of the claim in question. If it is found that the nature of the claim arose out of, or was created by the “family law relationship” (marriage or cohabitation), then those claims should be brought in family court. However, if it is found that the “family law relationship” is simply part of the narrative, and the claim did not arise from the “family law relationship” it can be brought in small claims.

In Pilon v. Lavigne, it was found that the loan, which was evidenced by a loan agreement and payment schedule, was incidental to the “family law relationship” and was not covered by the separation agreement the parties signed. As such, the matter was properly brought in small claims court.