ONTARIO COURT OF JUSTICE
BETWEEN:
Shawna Fernandes
Applicant
-and-
Matthew Thompson
Respondent
Before Justice Susan Sullivan
Heard on November 13, 2025
Reasons for Judgment released on November 20, 2025
E. Mourao ....................................................................................... counsel for the Applicant
M. Thompson......................................................................................on his own behalf
SUSAN SULLIVAN J.:
Introduction
1This is the return of Ms. Fernandes’ motion dated September 12, 2025, to address the remaining issue, which is Ms. Fernandes’ request that the court strike Mr. Thompson’s pleadings, if security for costs is ordered and he does not pay same.
2On October 22, 2025, this court ordered that by November 6, 2025, Mr. Thompson shall pay into court, by way of certified cheque, $25,500 as security for costs.
3Mr. Thompson has not paid the security for costs.
4When determining this remaining issue, this court relies on its reasons for judgment dated October 22, 2025, Fernandes v. Thompson, 2025 ONCJ 641.
Law
5Subrule 1(8) of the Family Law Rules1 states that 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.
6One of the orders a court can make is 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.2
7Pursuant to subrule 1(8.4), the striking of a party’s pleadings denies that party any further notice of the steps in the case (except service of an order), disentitles them to participate in the case, the case may be dealt with in the party’s absence, and the matter may proceed to an uncontested trial. These consequences are automatic unless the court orders otherwise.
8In Price v. Putman,3Justice Starr summarizes the legal principles applicable to a Rule 1(8) motion:
(a) Subrule 1(8) is available where there is a ‘failure to obey an order in the case.’ There is no requirement that the order be made on motion, and it matters not who obtained the order; as long as the judge is satisfied that there has been a failure to obey an order ‘in the case or related case’, subrule 1(8) is triggered.
(b) The failure to follow a court order should not be taken lightly. Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences.
(c) Discretion in favor of the noncompliant party will only be granted in exceptional circumstances.
(d) In deciding whether or not to exercise its discretion in favour of a non-complying party, the court ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
(e) The words ‘just determination’ in subrule 1(8) are sufficiently wide to include protecting the administration of justice, as that is what is at stake if a party willfully disobeys an order.
(f) The onus is on the non-complying party to show, on a balance of probabilities, that subrule 1(8) is not applicable or that the court should exercise its discretion in favor of the non-compliant party.
9Courts are rightly cautious about striking pleadings in family matters involving parenting; in family law cases, a party's pleading should be struck only in exceptional circumstances, where no other remedy would suffice.4
10At the same time, the Rules are to be interpreted broadly. Provisions addressing the consequences of non-compliance with court orders and Rules are important tools for judges presiding over family law matters to prevent a party from embarking in litigation abuse. These provisions must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of family law, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable, and emotionally respectful manner.5
11There is a three-step analysis for motions brought pursuant to subrule 1(8):
(a) Is there a triggering event that would allow consideration of subrule 1(8)?
(b) If yes, in the circumstances, is it appropriate to exercise discretion in favour of the non-complying party?
(c) If no, what is the appropriate remedy?6
Analysis
Triggering Event
12The triggering event is that Mr. Thompson has breached the October 22, 2025 order by failing to pay security for costs in the amount of $25,500 by November 6, 2025.
Exercise of Discretion
13Following a consideration of the relevant history of this litigation, and specifically Mr. Thompson’s conduct, this court declines to exercise its discretion in favour of Mr. Thompson and not impose a sanction for the breach.
14First, Mr. Thompson is in breach of other court orders in this matter:
(a) Mr. Thompson has not paid Justice O’Connell’s costs order dated July 16, 2025 in the amount of $10,000.
(b) Mr. Thompson has not paid Justice O’Connell’s costs order dated August 5, 2025 in the amount of $750.
(c) Mr. Thompson continues to be in breach of Justice O’Connell’s temporary order dated January 31, 2024 which requires him to pay monthly child support in the amount of $991 and arrears of child support in the amount of $6,500 for the period of March 1, 2023 to January 1, 2024. As of October 15, 2025 Mr. Thompson’s arrears of child support exceed $18,000.
(d) Mr. Thompson has not complied with this court’s order dated August 14, 2025 and served and filed his affidavit brief and exhibit brief by November 7, 2025; this matter is on the trial sittings starting November 24, 2025.
15Mr. Thompson’s explanations / plans regarding the foregoing lack merit.
16Mr. Thompson advised that he will be receiving $36,000 from Canada Revenue Agency by November 23, 2025. He explained that FRO will divert a portion of these funds to fully satisfy the support arrears accrued in this case. Mr. Thompson further advised that he will pay the balance received into court.
17Mr. Thompson provided no corroborating documentation to support his statements regarding forthcoming monies from Canada Revenue Agency. First, Mr. Thompson advised that he referenced these funds in his affidavit dated October 6, 2025; there is no information regarding him being entitled to such money contained in this document. As well, Mr. Thompson explained that he cannot have affidavits commissioned as he has no identification to provide a commissioner of oaths to confirm his identity. This court’s October 22, 2025 order states that the parties may provide oral evidence at the return appearance; Mr. Thompson could have brought the corroborating documentation, given oral testimony, and asked that his documentation to support his statements regarding forthcoming funds be marked as an exhibit. Mr. Thompson did not have any documentation with him on November 13, 2025 to permit this to occur. This court appreciates that Mr. Thompson is a self-represented litigant, but he has considerable experience in this court and in the Superior Court, therefore, it is reasonable to expect him to have problem solved his dilemma as noted above.
18Even if Mr. Thompson were to receive $36,000 soon from Canada Revenue Agency, it is questionable whether the balance (after his child support obligation to the subject children is satisfied) would be available to him to pay as security for costs:
(a) Mr. Thompson has a child support obligation to his child Erin (who was the subject of a proceeding in the Superior Court of Justice). In Mason v. Thompson,7Justice Newton Smith wrote at paragraph 75, “Based on the imputed income set out above, the Respondent owes $23,437 in retroactive child support to August of 2022, and $11,303 in retroactive section 7 expenses. Given the Respondent’s history of disobeying court orders and failing to pay support, a lump sum payment is appropriate to address his arrears. I am setting the lump sum at $30,000.”
(b) In this same decision, Justice Newton Smith ordered that Mr. Thompson pay Ms. Mason damages for defamation in the amount of $10,000. Her Honour also ordered that that Mr. Thompson pay Ms. Mason occupation rent in the amount of $19,800.
(c) There are also multiple costs orders in the Superior Court against Mr. Thompson:
On February 28, 2023, Justice Black ordered Mr. Thompson to pay $10,537 in costs.
On May 30, 2023, Justice Brownstone ordered Mr. Thompson to pay $4,500 in costs.
On June 6, 2023, Justice Kristjanson ordered Mr. Thompson to pay $7,500 in costs.
On April 4, 2024, Justice Nakonechny ordered Mr. Thompson to pay $9,000 in costs.
(d) Mr. Thompson confirmed that all monies ordered in Superior Court remain unpaid.
(e) There are also the two outstanding costs orders in this matter.
19Even if the balance of the monies received from Canada Revenue Agency were available to Mr. Thompson, they would not satisfy the October 22, 2025 order that requires he pay $25,500 into court as security for costs.
20Mr. Thompson’s submission that he lacks the financial resources to comply with the money-related orders in this matter is significantly diluted by the following:
(a) His line 150 income in 2024 was $98,435.
(b) His financial statement dated July 14, 2025 provides that his income this year will be $75,000.
(c) Mr. Thompson submitted that his 2024 income includes overpayments of employment insurance and his severance, which he is repaying. His July, 2025 financial statement states at paragraph 6 that he pays the nominal amount of $200 a month towards employment insurance overpayment; there is no indication in the evidence as to when these repayments commenced. His July, 2025 financial statement does not refer to a repayment of a severance payment as a debt, and there is no other evidence filed for this motion regarding this assertion.
(d) His temporary child support obligation in this case is less than it should be, as it is based on an income of $65,000 which is not reflective of his 2024 or 2025 incomes.
(e) Mr. Thompson resides with his mother and does not pay typical household expenses (according to his July, 2025 financial statement Mr. Thompson pays an estimate of $2,000 a month for rent/mortgage, and pays no utilities, no property taxes, no property insurance, no condominium fees, and no repairs or maintenance).
(f) He has not complied with payment orders made in this case or in his Superior Court matter.
21With respect to Mr. Thompson’s non-compliance with the August 14, 2025 order as it relates to serving and filing documentation for the upcoming trial, he reiterated his inability to have affidavits sworn given his lack of identification. Mr. Thompson provided no information to confirm that the materials are prepared, and did not advise of his plan to address his predicament. For example, Mr. Thompson provided no information as to efforts to speak with Duty Counsel or to otherwise receive legal assistance to address this issue. Mr. Thompson could have provided Ms. Mourao with an unsworn copy of his trial affidavit and indicated that he would be asking the court to permit him to swear / affirm its content at trial. He did not attend Assignment Court on November 4, 2025; if he did, he may have been able to ask the presiding judge for guidance. He did not bring a 14B motion to seek an order/direction regarding this issue from the case management judge. Again, this court appreciates that Mr. Thompson is self-represented, but given his litigation experience, it is reasonable to expect that he knew he needed to be proactive in terms of dealing with his situation, and there is no evidence that he took any action.
22Second, to date, Mr. Thompson has used the litigation process to inflict financial and emotional harm on Ms. Fernandes.8This militates against this court exercising its discretion in favour of Mr. Thompson. Further, Mr. Thompson presently shows no insight into this issue or changed behaviour. In his November 13, 2025 submissions, Mr. Thompson spent considerable time on the alleged misbehaviour of Ms. Fernandes and Ms. Mourao. For example, he stated that Ms. Fernandes has produced fraudulent evidence which will be the subject of a civil proceeding in the near future and reiterated that Ms. Mourao is being investigated by the LSO for her misbehaviour in this case (Ms. Mourao advised that she has not been made aware by LSO of an investigation regarding her conduct in this case). Mr. Thompson also indicated, without corroborating evidence, that there are police investigations in motion regarding Ms. Fernandes and Ms. Mourao regarding child abduction.
23Third, Mr. Thompson submits that this court ought to exercise its discretion in his favor because both he and Ms. Fernandes have breached court orders. This is not persuasive. Allegations of non-compliance with court orders cannot be ‘traded’, meaning that the answer to “you are in breach of a court order” is not “so are you.” Whether the other party may also be in breach is a separate issue.9 Further, this court notes that Mr. Thompson’s current stated concerns regarding Ms. Fernandes’ conduct were before the court in January, 2024 when he asked Justice O’Connell (via his notice of motion dated January 15, 2024) to dismiss Ms. Fernandes’ motion to change; on January 31, 2024 Justice O’Connell dismissed Mr. Thompson’s motion.
24Based on the foregoing, Mr. Thompson has not established that there are exceptional circumstances that justify discretion being exercised in his favour.
Appropriate Remedy
25Ms. Fernandes has satisfied this court that this is one of those rare cases where it is appropriate to strike Mr. Thompson’s pleadings. This court is further satisfied that it is appropriate to do so notwithstanding that parenting issues are to be decided.
26This court has considered whether a lesser remedy may be appropriate.
27In this case, lesser remedies have already been applied; costs and security for costs have been ordered and they have not had the desired effect on Mr. Thompson’s conduct.
28This court has considered whether guidance as to how to properly participate in the final hearing of this matter would be appropriate, but it is highly doubtful this would be effective. Mr. Thompson has already received specific direction as to how the trial will be conducted (via this court’s August 14, 2025 order), but he did not comply with its content, or make reasonable efforts to do so. Also, Mr. Thompson has had the benefit of judicial direction through the case management process and court rulings for years, however, this has not had any impact on his approach to this litigation.
29This court has also considered Mr. Thompson’s position in this motion to change. He is not requesting a variation of the existing 2022 final order, and he is not requesting that the existing 2022 final order continue.10 In effect, Mr. Thompson has no meaningful, substantive claim before the court with respect to the parenting issues. His focus is on the procedural aspect of the case and specifically Ms. Fernandes’ ability to proceed with a motion to change, given her alleged breaches of the 2022 final order. As already noted, Mr. Thompson raised this very argument (with the same type of evidence) in his January, 2024 motion, which Justice O’Connell dismissed. Also, in this court’s October 22, 2025 reasons for judgment,11it was found that Mr. Thompson persistently maintains the misguided belief that the court lacks the jurisdiction to deal with Ms. Fernandes’ motion to change. Based on the foregoing, the concerns associated with striking pleadings regarding parenting issues is not present in this case.
30This court has also considered that the financial issues are exceptionally straight forward and that Ms. Fernandes is not claiming anything more than is permitted pursuant to the relevant legislation.
31Based on the foregoing, I find that Ms. Fernandes has met the test for striking Mr. Thompson’s pleadings.
Order
Mr. Thompson’s pleadings shall be struck.
Ms. Fernandes may proceed with this case by way of uncontested trial, to be set by the Trial Co-Ordinator.
Mr. Thompson shall not be entitled to any further notice of steps in this case (except as provided by subrule 25(13)) and shall not be entitled to participate in a trial of this matter in any way.
Mr. Thompson’s approval as to form and content to this order, and any presently outstanding prior orders, and future orders shall not be required.
Costs in relation to this hearing, and attendance at assignment court, may be requested within the submissions ordered on October 22, 2025.
Released: November 20, 2025
Justice Susan Sullivan
Footnotes
- O. Reg. 114/99.
- Subrule 1(8)(c).
- 2018 ONCJ 86.
- Percaru v. Percaru, 2010 ONCA 92.
- Lamothe v Ellis, 2021 ONSC 4883, 2021ONSC 4883, at para. 29; Levely v. Levely, 2013 ONSC 1025, at paras.12-13.
- Ferguson v. Charlton, 2008 ONCJ 1, at para. 64.
- 2023 ONSC 5306.
- Paragraph 47 of October 22, 2025 reasons for judgment.
- Webber v Merritt, 2018 ONSC 7590, at para. 39. This decision addresses a contempt motion, but this principle is applicable to Rule 1(8) motions.
- See paragraphs 8 and 9 of October 22, 2025 reasons for judgment, and Mr. Thompson’s amended response to motion to change dated July 14, 2025.
- Paragraph 42(a).