The area and practise of family law is shaped by and evolves through societal change, legislation, global events (like a pandemic), and through judicial decisions of the Courts in Ontario and across Canada. FamilyMatters is a weekly update from our Family Law Lawyers on how that change is being made:
On April 19, 2021, Justice Audet released Reasons in Dagher v Hajj, 2021 ONSC 2853, a motion to strike the Respondent’s pleadings. Her Honour’s thorough and careful analysis of the Court’s authority to strike a party’s pleadings serve as a cautionary tale to litigants who flout disclosure Orders.
The parties in this case were set to start a 13-day trial, less than one month after the motion to strike. As a result of Justice Audet’s Order, the Husband was no longer entitled to make submissions and the matter proceeded to an uncontested trial.
The litigation had been ongoing since December 2017, and involved claims relating to decision-making responsibility for the minor children, exclusive possession of the matrimonial home, a restraining order, child support, spousal support and equalization of the net family properties. In respect of support, the Applicant Wife asserted that the Respondent Father was intentionally underemployed and hiding income.
The litigation was plagued with non-disclosure issues. Cumulatively four Orders were made requiring the Respondent husband to produce financial disclosure. The Husband provided some of the ordered disclosure but not the majority of what he was required to produce. The Applicant Wife was granted leave to bring a motion striking the Husband’s pleading.
In her analysis, Justice Audet reviewed the Court’s authority to grant the exceptional relief sought by the Wife. Where a party fails to obey an Order, rule 1(8)(c) gives the Court the power to make any order that it considers necessary for a just determination of the matter, including an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. The Court’s authority is also imbedded in rule 2 which empowers under Courts to promote the primary objective of dealing with cases justly, including ensuring that the procedure is fair to all parties.
Striking a party’s pleading is an extreme remedy. It is only to be used in the clearest of circumstances where no other remedy would suffice.
Balanced against that caution is the reality that full and frank financial disclosure is the most basic and fundamental obligation on parties in family litigation, and the failure to abide by that obligation negatively impacts the administration of justice. Our Court of Appeal has released repeated and clear decisions emphasizing the importance of parties complying with their ongoing disclosure obligations and Justice Audet quotes extensively from those decisions in her reasons. See for example Roberts v. Roberts 2015 ONCA 450, at paras 11-13; Manchanda v. Thethi 2016 ONCA 909, at para 13; Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1 at para. 45 Sparr v. Downing, 2020 ONCA 793; and Peerenboom v. Peerenboom, 2020 ONCA 240.
In deciding to exercise the extreme remedy of striking the Husband’s pleadings, Justice Audet found that the outstanding disclosure was significant, went to the root of the support issues, and were necessary to determine equalization entitlements.
Given the Husband’s pattern of non-compliance with Orders, including costs Orders, no other remedy would suffice: an adverse inference would not result in a fair determination of the issues and the Husband’s deception would only prolong the trial without getting to the truth.
The Husband’s Answer was struck and an uncontested trial ordered.
With the implementation of the amendments to the Divorce Act creating newly enumerated duties on parties with respect to disclosure, our Courts will be even more empowered to admonish parties who scoff their obligations. Sections 7.4 and 7.5, which came into force on March 1, 2021, include newly quantified duties to provide complete, accurate and up-to-date information and to comply with orders. If it wasn’t obvious already, it’s now abundantly clear that parties are expected to fully and actively comply with their disclosure requirements and will be sanctioned when they do not.
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