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Family - Admissions. El Sherif v. Bakr [FCR R22(2) Request to Admit]
In El Sherif v. Bakr (Ont CA, 2026) the Ontario Court of Appeal considered a family law appeal, here brought against orders whereby "the trial judge established the parties’ incomes for support purposes; determined child and spousal support, including retroactive support;[1] determined equalization; ordered post-separation adjustments; and directed that the matrimonial home be sold.".
The court considered the 'Request to Admit' provisions of the Family Court Rules [FCR 22 'Admission of facts - Request to Admit'], here regarding deemed admissions:a. Deemed Admissions
[36] I turn first to the deemed admissions issue.
[37] Rule 22(2) of the Family Law Rules provides that “[a]t any time, by serving a request to admit (Form 22) on another party, a party may ask the other party to admit, for the purposes of the case only, that a fact is true or that a document is genuine.” Under r. 22(4), the party upon whom a Request to Admit is served is deemed to have admitted that a fact is true or a document is genuine, unless they deny it, or refuse to admit with reasons, within 20 days.[6] The purpose of Requests to Admit is to narrow the factual issues in dispute, thereby rendering trials, and the family litigation process more efficient and cost effective. While the Requests also have obvious tactical value, their purpose is to streamline, not to “trap” the other party.
[38] Requests to Admit are subject to the primary purpose of the Family Law Rules, which include saving expense, time, and dealing with cases in a manner appropriate to their complexity: Splett v. Pearo, 2011 ONSC 5329, at para. 4. A Request to Admit should therefore “narrow the factual issues in dispute”: Jama v. Basdeo, 2020 ONSC 2922, at para. 19. Where a Request to Admit involves minute details of marginal value to the case, a court may refuse to consider the Request to Admit or deemed admissions arising from it. Further, serial Requests to Admit may amount to an abuse of process, being neither cost effective nor advancing the interests of the case: Smith v. Noel, 2023 ONSC 6682, at para. 8; Monte v. Monte, 2026 ONSC 4300, 32 R.F.L. (9th) 45, at para. 12.
[39] The practical effect of an admission under r. 22 is that a party will generally not be permitted to lead evidence that contradicts their admission: Jama, at para. 19; Ahmadi v. Heydari, 2018 ONSC 2682, at para. 140. In the civil context, an admission “is not like other pieces of evidence led at trial that a judge can weigh at their discretion”: Champoux v. Jefremova, 2021 ONCA 92, at para. 34. Rather, an admission is, generally, conclusive of the matter decided, and a court is bound to act on this admission, even if other evidence contradicts it: Champoux, at para. 34; Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106.
[40] However, Requests to Admit “should not be used to usurp the trial judge’s discretion and decision-making authority on legal issues”: Jama, at para. 19; see also Rajan v. Rajan, 2014 ONSC 5383, at para. 24. As this court noted at para. 11 of Serra, admissions are “not irrevocably cast in stone”. If a party fails to respond to the Request to Admit, or seeks to withdraw their admission, the court is entitled to consider the context of the case and the conduct of the parties.
[41] An admission under r. 22 may be withdrawn with the other party’s consent or with the court’s permission, where the withdrawal is in the interests of justice and consistent with the primary objectives of the Family Law Rules. The court will engage in a three-part inquiry: (1) whether the proposed withdrawal raises a triable issue; (2) whether the admission was inadvertent or resulted from mistaken instructions; and (3) whether the withdrawal will result in non-compensable prejudice to the other party. If a change in position is reasonably explained, the second prong of the test has been met: Champoux, at para. 28; Forget v. Forget, 2001 CarswellOnt 3271, at para. 17; and Smith at para. 8.
[42] The nature of the admission sought to be withdrawn is relevant, admissions of fact being generally well-entrenched, admissions of mixed fact and law less so, and admissions of law being the most easily displaced: Serra, at paras. 106, 109-112. The overriding factor is whether it is in the interests of justice to permit the withdrawal. As succinctly summarized by Kraft J. in Hagopian v. Kechichian, 2026 ONSC 4405, 32 R.F.L. (9th) 379, at para. 41:A deemed admission may be withdrawn where the interests of justice warrant it. The scope of the court’s discretion varies based on the circumstances surrounding the default and whether the deemed admissions involve pure facts, questions of law, or issues of mixed fact and law. Where a failure to respond is supported by satisfactory evidence of inadvertence, a genuine mistake, or a reasonable explanation for the party’s position, withdrawal may be permitted. [43] I would offer the following practical guidance regarding the use of Requests to Admit under r. 22:(1) The primary purpose of the Family Law Rules should be borne in mind when preparing Requests to Admit. Accordingly, repeated Requests, disproportionately onerous Requests, or Requests that seek marginal admissions should be avoided.
(2) Requests to Admit are of greatest utility where they are limited to facts, rather than questions of mixed fact and law, or questions of law, to which less deference is, as set out above, generally given.
(3) Requests to Admit should not be framed as compound questions. Rather, to be useful to the parties and the court, it should generally be possible to answer a requested admission with the words “admitted” or “denied”. Compound questions render responses ambiguous and are therefore of limited utility.
(4) Where facts are admitted by either or both parties in advance of trial, best practice is for a party to prepare a Statement of Agreed Facts for the other party’s consideration in advance of trial, and where there is agreement, for that document to be filed in the trial record: see Family Law Rules, at r. 23(1).
(5) The earlier any issues related to Requests to Admit can be addressed, the better. The Trial Management Conference is a practical venue for courts to consider whether such requests have been served, whether they have been responded to, and to canvas whether a party is intending to withdraw any deemed admissions. This will assist in an orderly process before trial, and at the commencement of trial.
(6) If a party seeks to withdraw deemed admissions at the outset of trial, it is advisable for the court to rule on such requests before proceeding with the trial. Otherwise, it becomes unclear whether there are issues upon which a party ought not be permitted to tender evidence.
(7) The use or misuse of Requests to Admit, and any failure to admit facts that ought to have been admitted, may be a consideration in the determination of costs under Rule 24: Tscherner v. Farrell, 2014 ONSC 976, 41 R.F.L. (7th) 414, at para. 7.
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