ONTARIO COURT OF JUSTICE
DATE: 2025 06 10
COURT FILE No.: Sudbury D-389-14-0002
BETWEEN:
KRISTA HUDDER
Applicant
— AND —
BRAD COURCHESNE
Respondent
Before Justice G. Jenner
Heard on June 9, 2025
Reasons for Judgment released on June 10, 2025
Réjean Parisé.................................................................................. counsel for the applicant
Lance Talbot............................................................................... counsel for the respondent
JENNER J.:
Reasons Re: Rule 1(8) Motion to Strike Pleadings
I. Introduction
1The parties are parents to the 11-year-old child. The underlying proceeding is the respondent father’s motion to change the order of Justice Penny Jones dated April 24, 2018 (“the Final Order”). The motion to change was initiated in 2021. Specifically, the father is seeking to change his parenting time from supervised to unsupervised, and is seeking to adjust his child support obligations.
2On June 9, 2025, I heard the mother’s motion to strike the father’s motion to change, on the basis that he breached the Final Order by failing to pay child support and failing to provide annual income disclosure.
3If the motion to strike pleadings is not granted, the next substantive step in the motion to change is a focused hearing on the threshold issue of whether there has been a material change in circumstances justifying a variation to the supervised parenting provision of the Final Order. That hearing is scheduled for August 19 and 22, 2025. If the motion to strike is granted, it will end the proceedings, as the mother has not requested any substantive relief in her pleadings.
II. Legal Framework
4Rule 1(8) broadly empowers a court to respond to a party's failure to obey an order and sets out a non-exhaustive list of tools. It reads as follows:
Failure to obey order
(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs;
(a.1) an order to pay an amount to a party or into court as a penalty or fine;
(b) an order dismissing a claim;
(c) 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;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order.
5In a motion brought under rule 1(8), the court follows the three-step process established in Ferguson v. Charlton, 2008 ONCJ 1, at para. 64:
First, the court must ask whether there is a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].
Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8)…. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy…
6Implicit in this analysis is the principle that the court’s response to the breach of a court order should be proportionate to the non-compliant conduct: Mills v. Hachey, 2018 ONCJ 779, at para. 15. In Price v. Putman, 2018 ONCJ 86, at para. 44, the court added that a sanction under rule 1(8) “should be restorative to the victim of the breach and punitive to the noncompliant party.”
[7] Rule 1(8) must also be read in conjunction with r. 2(2) which provides that the primary objective of the rules is to deal with cases justly. Per subrule (3), dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
8Further guidance in the application of r. 1(8) to alleged disclosure-based non-compliance is found in Mullin v. Sherlock, 2018 ONCA 1063, at paras. 45-46:
In assessing the most appropriate remedy, a judge should consider the following factors:
- the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
- the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
- the extensiveness of existing disclosure;
- the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
- any other relevant factors.
Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.
III. Issues
9Applying that framework to this motion, the two issues to be determined are:
- Has the respondent father breached an order of this court?
- What remedy, if any, is appropriate?
IV. Evidence
Relevant Order Terms
10The relevant terms of the Final Order are as follows:
- Para. 7: That the Respondent shall pay child support to the Applicant for [the child], in the amount of $511.00 per month, commencing March 1, 2018 and continuing on the first day of each month thereafter, based on his income [in] 2017 of $55,421.95.
- Para. 8: The Respondent shall advise the Applicant in writing within fourteen days of any material change in his financial circumstances occurring, including but not limited to his EI benefits ending, his return to work, etc., and shall provide the Applicant with documentation confirming the particulars of the change so that child support can be recalculated.
- Para. 9: The Respondent shall provide the Applicant with a copy of his income tax return and Notice of Assessment on an annual basis.
- Para. 11: For as long as child support is paid, the payor and the recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary date of this Order, in accordance with Section 24.1 of the Child Support Guidelines.
Mother’s Evidence
11According to the mother, the father is in arrears of child support in the amount of $11,220.94 as of May 5, 2025. The father has been employed since the commencement of the motion to change with either his father’s business, being B&C Handyman Limited (“B&C”), or his brother’s business. There was also a period of employment insurance collection in 2021. When the father filed his motion to change, he provided Notices of Assessment for 2018 and 2019. The documents showed his income to be higher than the 2017 income relied on by the Final Order. He earned $61,319 in 2018 and $63,915 in 2019. The father did not adjust his child support.
12The father seeks to pause his child support as of January 1, 2021. The Notice of Assessment provided for 2020 shows an income of $65,873. The Notice of Assessment for 2021 shows a significantly reduced income of $28,872.17. The father's Income Tax Returns and Notices of Assessment for the years 2022, 2023, and 2024 remain outstanding.
Father’s Evidence
13The father acknowledges he is in arrears of $11,220.94. He further agrees he did not provide the applicant with his Notices of Assessment in accordance with the Final Order. He denies, however, that he failed to disclose his changes in income to the mother. His evidence is that he documented changes in their “Communication Book”, and that in late 2018 or early 2019 he and the mother had discussions about his increased income. He says they reached an informal agreement for increased child support, with payments to be deposited directly to the mother’s bank account. Increased payments flowed until October 2020, when he lost his job and his income was significantly reduced. The father further emphasizes that he has historically taken his child support obligations seriously, for example by paying his child support in full in 2016 despite being jailed for a period. He notes that on October 13, 2023 he obtained a refraining order that required him to pay $250 per month towards arrears, and that he has complied with that order to date.
V. Analysis
5.1 Has the father breached the Final Order
14The parties agree the father has breached the Final Order by failing to make full child support payments and by failing to provide his Notices of Assessment on the timeline required. It is also clear the non-compliance with respect to disclosure continues. To date, the father has not provided his Income Tax Returns or Notices of Assessment for 2022, 2023, or 2024.
5.2 What remedy, if any, is appropriate?
15The mother seeks, as remedy for these breaches, the striking of the father’s pleadings. The striking of pleadings can be an appropriate response to non-compliance with disclosure orders, and a pattern of willful non-compliance risks a litigant’s standing: Manchanda v. Tethi, 2016 ONCA 909 at para. 13. Striking pleadings is, however, among the most consequential remedies available to a court under the rules. It can serve to frustrate the benefits of our adversarial system and should only be granted when other remedies would not suffice: Purcaru v. Purcaru, 2010 ONCA 92, at paras. 47-49.
16This is a case where the non-compliance must be met with some sanction. There are, additionally, several factors present which tend to support the striking of pleadings. The undisclosed material is critical to one of the main issues in the motion to change and is hindering potential resolution of those issues. The financial issues in the case are uncomplicated, such that it is difficult to fathom how or why such basic information is not available in 2025, some four years after the father initiated his motion to change. Though the court was advised via counsel submissions that the delay is due to late filing of taxes, it is dissatisfactory that no detailed explanation for the delay is contained in the evidentiary record.
17I conclude, however, that the striking of pleadings is not the appropriate remedy in this case, having mind to (i) the timing of the mother’s request in the context of the litigation; (ii) relationship of the non-payment to the issues raised by the motion to change; (iii) the impact of striking pleadings on the litigation of parenting issues affecting the child’s best interests; and (iv) the availability of lesser remedies.
Timing of the mother’s request
18The father points out that the mother’s concerns with the father’s non-compliance were not raised at an earlier case management step of these proceedings, but instead this motion was brought within three months of the scheduled focused hearing. I have reviewed the endorsement history in this matter. On February 2, 2022, the father’s then-outstanding 2020 Notice of Assessment was discussed. On August 16, 2022, there is discussion related to a Request for Information aimed at the father’s employer, B&C. But apart from those instances, the driving focus of the discussion was the need to resolve, as a threshold matter, the question of whether there had been a material change in circumstances justifying a revisiting of the supervised parenting order. At no point was the court asked to make any order or set any timeline with respect to outstanding financial information. This is unfortunate.
19Rule 2(5) of the Family Law Rules requires the court to promote the primary objective, to deal with cases justly, by, among other things, identifying issues at an early stage, setting timetables, and controlling case progression. The parties are required, pursuant to r. 2(4), to assist the court with these duties. To be sure, the failure to follow the Final Order with respect to financial disclosure was the father’s, not the mother’s. But proceeding to the extreme position of seeking to strike the father’s pleadings without having pressed these issues at earlier stages in the litigation does not promote the primary objective of the rules. The non-disclosure of the father’s Income Tax Returns and Notices of Assessment could have been swiftly addressed in the context of the many case management appearances on this matter.
Relationship of the non-payment to the motion to change
20With respect to non-payment of the full amount of child support ordered, I must be mindful that the father, in his motion to change, is seeking to vary the terms he has not complied with. Changes in incomes do not always come with fair warning. Payors will, from time to time, find themselves unable to meet the terms of an order that they must then seek to change. Courts must be cautious in striking pleadings where a child support recipient seeks that remedy because of non-payment under the order sought to be changed: Pierce v. Kisoon, 2019 ONSC 4389, at para. 17; Covell v. Covell, 2022 ONSC 6189, at para. 10. There is a circularity of reasoning in permitting such non-compliance to stand as a barrier to examining whether compliance ought to be required or sustained. The father’s performance in respect of the child support payment clauses is better examined in the motion to change proper, rather than this motion to strike.
21Of course, this factor bears on the breach of the Final Order related to non-payment, and is of no weight in respect of the failure to disclose.
Issues affecting the best interests of the child
22The mother does not limit her requested relief to issues of child support. She asks that the father’s pleadings be struck in their entirety. This would, functionally, prevent a hearing of the parenting issue on its merits.
23Where children’s interests are involved, the court must proceed with caution in striking pleadings, as decisions in a child’s best interests are generally better made with the participation of both parties: King v. Mongrain, 2009 ONCA 486, at para. 31; Haunert-Faga v. Faga, at para. 7.
24The parenting issue in this matter is whether the father’s parenting time should remain supervised, as it has been for the past seven years. The child’s best interests are not served by further cementing this arrangement without permitting a meaningful exploration of its continued appropriateness. It may remain justified. I cannot and do not assume that there has been a material change in circumstances. But the father’s history of compliance with unrelated financial orders should not preclude the inquiry.
25I must of course be mindful that I have jurisdiction to strike pleadings on financial issues while permitting parenting issues to continue. Sleiman v. Sleiman.
The availability of lesser remedies
26Among the factors often considered in motions to strike of this nature is whether the non-compliance is extensive and persistent: Lamothe v. Ellis, 2021 ONSC 4883, at para. I find it is premature to conclude the father will not bring himself within compliance of the Final Order’s disclosure provisions, albeit late. The court should not leap forward to strike his pleadings without first renewing, within the motion to change, an order for disclosure of the relevant documents. Rule 1(8) provides the tools, short of striking pleadings, that would restrict the father’s ability to advance his financial claims, while motivating him to bring himself within compliance. Prejudice to the mother in the form of resources expended to prosecute this issue can be addressed as a factor as costs are determined.
VI. Conclusion
27The father is in breach of clauses 7, 9, and 11 of the Final Order.
28As remedy, I order as follows:
- The father must serve and file the outstanding material, specifically, his Income Tax Returns and Notices of Assessment for the years 2022, 2023, 2024, and 2025 within 90 days of the release of this decision;
- The father is precluded from obtaining any relief relating to child support, ongoing or retroactive, in this or any related proceeding until he has provided the outstanding material;
29The previously scheduled court dates in this matter for trial/hearing management conference and focused shall proceed. For clarity, the focused hearing will be limited to the issue of whether there has been a material change in circumstances with respect only to the parenting issue. Issues of child support, if not resolved once full disclosure is made, shall be scheduled separately for trial or focused hearing.
30The parties are encouraged to resolve the issue of costs of this motion. If they are not able to, they shall address the issue in writing. The father shall serve and file his bill of costs and other relevant documents within 15 days of the release of this decision. They may be accompanied by written submissions not exceeding two pages. The mother will have 15 days following the receipt of the father’s submission to file bill of costs and responding submissions, which shall be governed by the same limitations as to form and content.
Released: June 10, 2025
Signed: Justice G. Jenner