CITATION: Zolnai v. Zolnai, 2026 ONSC 2808

DIVISIONAL COURT FILE NO.: DC-25-0081-00

DATE: 20260605

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Shore, O’Brien, and Smith JJ.

BETWEEN:

ANDREA ZOLNAI

Appellant

– and –

FRANKLIN ZOLNAI

Respondent

Rishab Lohan (Co-Counsel), for the Appellant

Ashley Lipinsky (Agent), for the Respondent

HEARD at Brampton: March 3, 2026

REASONS FOR DECISION

Shore, J.

1The Appellant mother brought a motion under r. 1(8) of the Family Law Rules, O. Reg. 439/07 to strike or stay the Respondent father’s motion to change the final order of the court because the father was in breach of an outstanding court order. The motion was dismissed by order of Trimble J. dated March 25, 2025. Leave to appeal that order was granted by this Court on June 20, 2025: Zolnai v. Zolnai, 2025 ONSC 3585.

2For the reasons below, the appeal is granted.

Background:

3The parties were married on May 17, 2008, and separated on September 14, 2013. They have three children who primarily reside with the Appellant.

4The litigation began after the parties separated, by way of a court application in 2014, and was finally resolved by way of Minutes of Settlement in 2019.

5On consent, the parties obtained a final order from Pazaratz J., on August 15, 2019 (the “Pazaratz Order”). The relevant provisions of the Pazaratz order are as follows:

27. Commencing January 1, 2019, and continuing on the first day of each month thereafter, based on an imputed income of $200,000 for 2018, the Applicant shall pay child support to the Respondent in the sum of $3,428.00 per month.

28. The Applicant shall pay retroactive child support for the period of January 1, 2017, to December 31, 2019, in the sum of $3,820.00 per month. The Applicant shall be credited with all payments made to the Respondent through the Family Responsibility Office pursuant to the Order of Justice Mazza dated December 12, 2016.

29. Commencing January 1, 2019, and continuing on the first day of each month thereafter until December 31, 2021, the Applicant shall pay spousal support to the Respondent in the sum of $2,162.00 per month.

30. Arrears of spousal support as of December 31, 2018, are fixed at $52,000.00. The said sum is to be paid in full by December 31, 2019. The lump sum is non-taxable to the Respondent and non-deductible to the Applicant.

The Applicant shall pay to the Respondent the sum of $75,000.00 in full satisfaction of equalization, property and all other claims of the Respondent.

The sum of $75,000.00 shall be payable in two installments as follows: (a) the sum of $50,000.00 to be paid on or before December 31, 2020; and (b) the sum of $25,000.00 to be paid on or before December 31, 2021.

This Order bears post-judgment interest of 3.0% from the date of this Order. Where there is a default in payment, the default shall bear interest only from the date of default.

6There is no dispute that the Respondent failed to make the payments as set out in the Pazaratz Order:

a. He failed to pay the equalization payment of $75,000.

b. He failed to pay the retroactive spousal support. He was ordered to pay retroactive support of $52,000. He only paid $28,000, with arrears of $24,000 still owing as of March 1, 2020.

c. He failed to pay retroactive child support. The arrears of child support as of March 1, 2020, were approximately $58,000.

d. He failed to pay ongoing child support and spousal support in the amounts set out in the Pazaratz Order.

7On October 7, 2021, the Respondent brought a motion to change the child support and spousal support provisions of the Pazaratz order retroactive and effective as of March 1, 2020. The Respondent used March 1, 2020, as the effective date for the motion to change because that was the commencement of the COVID-19 pandemic. The Respondent submits that his music school, the Ontario Conservatory of Music,¹ was decimated by the pandemic and his income decreased dramatically as of that date.

8The Respondent’s 2019 income was imputed at $200,000 for the purpose of the consent order. His 2020 Line 150 income was $70,896, which included CERB payments received during COVID-19. If this is an accurate reflection of his income in 2020, this represents a material decrease in income.

9The Appellant alleges that the Respondent is hiding his income and disputes that there has been a material change in income. She also brought a motion to strike/dismiss the Respondent’s motion, or to stay the proceedings pending compliance with the Pazaratz Order, and specifically payment of the arrears owing to March 1, 2020.

10The Appellant’s motion to stay/strike was heard on March 14, 2025, and the motion judge’s decision was released on March 25, 2025, dismissing the Appellant’s motion.

11This is an appeal of that decision.

Standard of Review:

12The standard of review on appeal on questions of law is that of correctness. The standard of review on appeal on questions of fact is palpable and overriding error. Questions of mixed fact and law are subject to the standard of palpable and overriding error, unless the judge erred in applying the appropriate legal principle, in which case the higher standard of review, correctness, is applicable: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 37.

13In family law matters, involving intricate and complex ongoing relationships between the parties and the best interests of children, appellate courts should give significant deference to the factual findings and decisions of lower courts who have the benefit of observing and interacting with the parties and of directly hearing their evidence in the courtroom and because of the fact-based and discretionary nature of family law decisions: Van v. Palombi, 2017 ONSC 2494 at para. 28.

14In this case, while the decision was an exercise of discretion, the Appellant submits the judge made an error of law. The standard of correctness therefore would apply.

Analysis:

15The Respondent submits that the payments in the Pazaratz order exceeded his ability to pay support and were unfair at the time the order was made. However, the Pazaratz order was made on consent and is not the order under appeal. Even if the Respondent is entirely successful on his motion to change, it would not affect the significant arrears owing as of March 1, 2020, under the Pazaratz order. As of March 1, 2020, he owed the Appellant $157,000 plus interest under the Pazaratz order, in combined equalization payment, child support arrears and spousal support arrears, not taking into account his ongoing support payments.²

16There is a litany of case law that reviews the obligation to comply with court orders, starting with the often-cited quote of Quinn, J. that “[a]n order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders”: Gordon v. Starr, (2007) 2007 35527 (ON SC), 42 R.F.L. (6th) 366 (Ont. Sup. Ct.) at para. 23.

17The Appellant’s motion was brought under r. 1(8) of the Family Law Rules which provides as follows:

1(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) a contempt order, if sought under rule 31.

18The parties agree that there is a three-part test in considering whether to make an order under r.1(8). There is no dispute between the parties as to the test to be applied. The dispute arises as to whether the motion judge applied the correct test.

19At paragraph 18 of the motion decision, the test is set out as follows:

[18] Striking a pleading under FLR 1(8) involve[s] a three-part test:

a. Has there been non-compliance with an order in the case or a related case.

b. Is it appropriate to sanction the non-complying party under Rule 1(8)? This discretion should be exercised only in exceptional circumstances.

c. If the pleading is not to be struck what is the appropriate remedy under Rule 1(8)?

(see: Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para. 52; Ferguson v. Charlton, 2008 ONCJ 1 at para. 64; Pye v. Pye, 2017 ONSC 6032 at para. 53).

(emphasis added)

20The decision specifically cites three cases. The wording set out in those cases is different from the wording set out by the motion judge. For example, Pye v. Pye, 2017 ONSC 6032, aff’d 2018 ONCA 283, states at para 53:

There is a three-part test for striking the dismissal of a claim or a document under Rule 1(8) of the Family Law Rules. First, the court must ask whether there has been non-compliance with an order in the case or a related case. Second, the court must ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning the party under Rule 1(8), a discretion the case law suggests is exercised only in exceptional circumstances. Third, if the court decides not to exercise its discretion in favour of the non-complying party, it has broad discretion under Rule 1(8) in respect of an appropriate remedy. (Ciarlariello v. Iuele-Ciarlariello, 2012 ONSC 6636 at para. 52, citing Ferguson v. Charlton, 2008 ONCJ 1at para. 64). (emphasis added)

21The second part of the test as set out by the motion judge requires a court to find exceptional circumstances to sanction the non-complying party, whereas the test, as established in the case law, is that a court is required to sanction a non-complying party unless they find exceptional circumstances.

22As set out in Teixeira v. Teixeira, 2022 ONSC 6133, 81 R.F.L. (8th) 483, at para. 27, citing Pearce v. Kisoon, 2019 ONSC 4389, at para. 16, “the onus is on the non-complying party and the party seeking relief from the court to show why it would be appropriate for the Court to exercise its discretion in his favour.”

23The test, as set out by the motion judge, reverses the onus, in that the moving party would have the onus to prove exceptional circumstances to sanction the non-complying party.

24The Respondent referred to Van v. Palombi, 2017 ONSC 2492 in his materials and submissions. In Van, the Court refused to overturn the motion judge’s decision to strike the father’s pleadings for failure to pay any of the three cost orders owing to the mother but modified the order to allow some participation in the trial on custody and access (as it was referred to then). The test under 1(8) was set out as follows:

(a) Is there a triggering event justifying the striking of pleadings?;

(b) Is it appropriate to strike the pleadings in the circumstances of the case?;

(c) Are there other remedies in lieu of striking pleadings that might suffice?

25The Court in Van, carried on to state that these three-pronged principles are well established in the case law, and cited a number of cases: Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th)189; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D. L. R. (4th) 328; Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121 at paras. 47-48; King v. Mongrain (2009), 2009 ONCA 486, 66 R. F. L. (6th) 267 (Ont. C.A.); Haunert-Faga v. Faga (2005), 2005), 2005 39324 (ON CA), 203 O.A.C. 388 (C.A.) ; and Marcoccia v. Marcoccia (2009), 2008 ONCA 866, 60 R. F. L. (6th) 1 (Ont. C.A.). These cases all stand for the proposition that a party’s pleading should be struck only in exceptional circumstances, where no other remedy would suffice.

26These cases deal specifically with the striking pleadings, usually before trial, not a motion to change a consent order. However, putting the two lines of cases together, it would be exceptional for a court not to sanction a non-compliant party. In determining the appropriate sanction, courts should be wary of striking pleadings and should only do so in exceptional circumstances, where no other remedy would suffice.

27In this case, the motion judge misstated the test on whether to sanction the Respondent at all. It was an error to say the discretion to sanction should only be exercised in exceptional circumstances, even if caution is required when striking a pleading.

28Further, although the motion judge initially referred to the third part of the test, he did not grapple with the question or even refer to it in the analysis. The motion judge’s conclusion was that “it is not reasonable to strike or stay” the father’s motion to change. He did not consider any other remedies available under r.1(8). For this reason, I would set aside the decision.

Result:

29Subsection 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 sets out the powers of a court hearing an appeal. Generally, unless otherwise provided, the court can make any order or decision that ought to or could have been made by the court or make any other order or decision that is considered just.

30In determining whether to make an order on the original motion or remit the motion to be determined by the same or a different motion judge, I have considered the primary objective of the Family Law Rules, which is to enable the court to deal with cases justly: O. Reg. 114/99, r. 2 (2).

31Rule 2(3) of the Family Law Rules specifies that:

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.

32Sending the matter back for a rehearing will further delay the ultimate hearing of the Respondent’s motion to change. The issue is straightforward and this Court is able to decide the motion to strike on the material before the Court.

33There is no dispute that the first part of the test has been met because there has been non-compliance with a court order.

34With respect to the second part of the test, in considering whether to exercise discretion in favour of the Respondent by not sanctioning the Respondent, I find there are no exceptional circumstances. At paragraph 20, the motion judge states “[i]t is not reasonable to strike or stay the Father’s Motion to Stay until he pays all arrears” and lists three reasons: he is in breach of one order not several, his failure to pay requires a hearing on a fuller record, and a stay would only perpetuate and prolong the non-payment. None of these are exceptional circumstances. I do not find any exceptional circumstances set out in the evidence of this case as it relates to the money owing under the court order as of March 1, 2020. This money would be owed even if the Respondent is entirely successful on his motion to change.

35The decrease in the Respondent’s business as a result of the COVID pandemic does not excuse his failure to make the payment owing under the order as of August 2019.

36With respect to the third part of the test, I must consider the remedy to be ordered. The objective of a sanction for failing to comply with court orders: “ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court”: Rayes v. Dominguez-Cortes, 2018 ONSC 6580 citing Purcaru v. Purcaru, 2010 ONCA 92, 265 O.A.C. 121, at para. 49.

37As Justice Chappell stated in Levely v. Levely, 2013 ONSC 1026:

13 […] Judicial response to a party's failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.

38As set out above, even if the Respondent is entirely successful on his motion to change, it would not affect the significant arrears owing as of March 1, 2020, under the Pazaratz Order. This part of the order should be complied with before the Respondent is entitled to seek other relief from the Court.

39I find it reasonable and appropriate to give the Respondent an opportunity to remedy the non-compliance with the Court order, and to be able to participate in the proceedings. The arrears owing as of March 1, 2020, should be paid as a condition of continuing with the motion to change. Over 6 years have passed since the initial consent order was made. Technically, the equalization payment has been owing since the date of separation in 2013, some 12 years ago. The order, as it relates to the equalization payment and the arrears as of March 1, 2020, should be paid before the Respondent is allowed to seek relief from this court.

40The Respondent is to pay the arrears owing as of March 1, 2020, as a condition of continuing to participate in the proceedings and to proceed with his motion to change.

Costs:

41The parties agreed to costs of $7,000 to the successful party.

Disposition:

42The appeal is granted.

43As a condition for continuing with his motion to change the support order, the Respondent shall pay the arrears of support and equalization payment owing as of March 1, 2020, under the terms of the Pazaratz Order.

44The Respondent shall pay the Appellant costs of $7,000.00 within 30 days.

Footnotes

1. 1The Respondent owns approximately 37% of the business through a holding company, 1641734 Ontario Inc. His father is also a partner in the business. His father passed away in 2025. It is unclear who currently holds his father’s interest.
2. 2His current arrears of child support and spousal support is over $250,000, inclusive of interest if the order is not varied as of March 2020.