It is a well-established principle in family law that parties who fail to obey court orders may have their pleadings struck. Once a party’s pleadings are struck, the party “is not entitled to participate in the case in any way”.[1] This gives courts the power to sanction the non-disclosure of assets, a problem which has fairly been described as the “cancer of family law” by the Supreme Court of Canada.[2]
In Manchanda v Thethi, the Ontario Court of Appeal confirmed that although a party whose pleadings have been struck are not “entitled” to participate in the proceedings, this lack of entitlement does not prohibit the court from permitting the indirect participation of the offending party, where doing so will assist the court in achieving a just result.
The appellant in Manchanda v Thethi [3] took issue with the trial judge’s decision to permit the respondent, whose pleadings had been struck, to indirectly participate in the proceedings by placing the appellant under the burden to prove her case, and the trial judge’s failure to draw adverse inferences against the respondent. The trial judge had noted several deficiencies in the applicant’s materials, including that she was over-reaching on some issues and that her evidence changed following questions posed by the judge at trial. The trial judge declined to award several of the applicant’s requests for relief and disagreed with her valuation of the matrimonial home. In doing so, the appellant argued, the trial judge effectively allowed the respondent to benefit from his own misconduct.
A unanimous Court of Appeal disagreed. It held that judges at contested hearings are not required to accept the evidence of a participating party at face value. Rather, trial judges are not only entitled, but “required… to probe the appellant’s evidence to ensure a just result”.[4] The Court of Appeal noted that the trial judge simply wanted to be certain that his findings of fact were based on credible and reliable evidence. According to the Court of Appeal, providing such evidence is the burden of the participating party, here the applicant, whether their adversary’s pleadings have been struck or not.
This case serves as an important warning for parties in uncontested trials. Providing the court with accurate information, including, in family law matters, full and clear financial disclosure, remains of the utmost importance. The objective of striking pleadings is to sanction the defaulting party’s impugned conduct and to encourage compliance with court orders. However, courts have an obligation to protect the integrity of the judicial process and ensure a just result. In Manchanda v Thethi, the Court of Appeal supported a trial judge who discharged this duty and protected against the injustice, even where doing so requires the trial judge to act as the de facto last line of defence for a party who was not entitled to participate in the process.
[1] Family Law Rules, O Reg 114/99, s 1(8.4).
[2] Leskun v Leskun, 2006 SCC 25 at para 4.
[3] Manchanda v Thethi, 2021 ONCA 127.
[4] Ibid at para 11.
