Court of Appeal for Ontario

Date: 2018-07-24 Docket: C64440

Judges: Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

Between

Mariette Matos Applicant (Respondent in Appeal)

and

David Driesman Respondent (Appellant)

Counsel

David Driesman, acting in person

Michael Polisuk, for the respondent

Heard and released orally: July 16, 2018

On appeal from: the order of Justice Paisley of the Superior Court of Justice, dated September 22, 2017.

Reasons for Decision

[1] The appellant father, Mr. Driesman, appeals from the order of the motion judge, striking his pleadings.

[2] The parties had settled all issues arising from the marriage breakdown. Under their agreement, the father's income was deemed to be $120,000 per year and he agreed to contribute $1,000 per month towards the children's s. 7 expenses for the following five years. At the end of the five-year term, the father stopped paying these expenses.

[3] On September 24, 2015, the mother initiated a motion to change to seek continued s. 7 contributions. The father opposed and sought a refund of table child support and s. 7 contributions in the amount of approximately $66,000. The father disputed that his income was approximately $120,000. At his questioning, he provided undertakings. They were not fulfilled.

[4] Most significantly, the father failed to provide proof of the source of deposits totalling approximately $1,169,000, despite being requested to do so on five occasions.

[5] In June 2017, the motion judge provided the father with clear directions as to how to fulfil his undertakings and put him on notice that he risked having his pleadings struck if he failed to comply. When the father failed to comply with the undertakings, his pleadings were struck.

[6] The father submits that the motion judge's order striking his pleadings should be set aside because the motion judge failed to provide reasons. He argues that he complied with his undertakings.

[7] We reject this submission. In the context of the motions before the motion judge and the record, it is clear that the motion judge struck the father's pleadings because he was satisfied that the father's further responses did not comply with the undertakings. We are not persuaded that the motion judge's conclusion that the father did not comply with the undertakings constitutes a palpable and overriding error.

[8] The father further submits that the extraordinary remedy of striking his pleadings was not proportional.

[9] We disagree.

[10] The disclosure that was made was dwarfed by the size of the unexplained deposit. Given the parties' financial situations, the size of the unexplained deposits makes this submission highly significant. Moreover, the mother acknowledges that the pleadings that were struck were only the father's Form 15B Response to Motion to Change as it relates to Mesbur J.'s order of April 12, 2010.

[11] Furthermore, as this court stated in Manchanda v. Thethi, 2016 ONCA 909, 84 RFL (7th) 374:

After continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, wilful non-compliance must be considered egregious and exceptional.

[12] The father also asserts that striking pleadings here is inappropriate because of his child-related claim for the court to intervene in his estrangement from his daughter. The mother responds to this by saying that the father has not properly put the issues of custody and/or access previously settled before the court.

[13] Again, we agree.

[14] The appeal is dismissed. The mother is entitled to costs of the appeal, fixed in the amount of $10,000, inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O."

"K.M. van Rensburg J.A."

"G. Pardu J.A."