Court File and Parties

COURT FILE NO.: FC-15-240 DATE: 2019/05/03 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anderson Llewlyn Norris, Applicant -and- Ellen Seville Norris, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Michael Rappaport for the Applicant Pierre Ranger, for the Respondent, retained on a limited scope retainer for purpose of this motion only

HEARD: April 23, 2019

Endorsement

[1] This is the Respondent’s, Ms. Norris’s, motion for an order striking the Applicant’s, Mr. Norris’s, Application and Amended Application, to post security for trial costs in the amount of $85,000, exclusive possession of the matrimonial home, and other related relief.

[2] For reasons set out below, I strike Mr. Norris’s pleadings, grant Ms. Norris interim exclusive possession of the matrimonial home, and order that the Respondent proceed to an uncontested trial in the trial sittings in Ottawa commencing May 13, 2019. I further order that if, prior to May 9, 2019, the Applicant pays the outstanding cost orders against him in full and complies with his disclosure obligations under portions of the February 28, 2018 Order, he may bring a motion to determine if he should be allowed to participate at trial in some manner, including whether his pleadings should be reinstated.

Pleadings

[3] This Application was commenced in February of 2015. In the original Application, Mr. Norris, sought a divorce, spousal support, and equalization of net family property. He claimed the parties separated in May of 2009. The Application was served on March 1, 2015.

[4] Ms. Norris in her Answer claimed the parties separated in February of 2008. She sought child support, exclusive possession of the matrimonial home in which she has resided since separation, and that Mr. Norris transfer his interest in the home to her. As Ms. Norris’s date of separation would mean that Mr. Norris’s equalization claim was beyond six years from the date of separation, being the time period for bringing such a claim under the Family Law Act, in the event that Mr. Norris obtained an order extending the time to claim an equalization, she sought an unequal division of net family property.

[5] By Order of Justice Maranger dated December 13, 2016, Mr. Norris was given leave to amend his Application, which he did in January of 2017. In his Amended Application, Mr. Norris sought occupation rent, an order listing the matrimonial home for sale, a declaration that the date of separation was May 7, 2009, and in the alternative an order extending the time to file his claim for an equalization payment.

[6] These proceedings do not include any issues related to custody and access. The four children of the marriage are now 38, 33, 30, and 27 years of age.

Cost Orders

[7] In granting leave to amend the Application, Justice Maranger also ordered Mr. Norris to pay costs to Ms. Norris fixed at $10,000, payable “forthwith”, for costs thrown away as a result of his amended pleadings, noting that the request for the amendment came late in the day, almost two years into the litigation, after several court appearances.

[8] Mr. Norris sought leave to appeal Justice Maranger’s cost award. On June 8, 2017, Justice Beaudoin dismissed his request for leave to appeal, and by order dated July 21, 2017, ordered Mr. Norris to pay additional costs fixed at $5,000, also payable “forthwith”. In his reasons, Justice Beaudoin noted his concern that Mr. Norris’s unsuccessful motion for leave to appeal resulted in further delays as well as unnecessary legal fees.

[9] To date, Mr. Norris has not made any payments towards the outstanding cost awards that now total $15,000 plus interest.

Other Orders

[10] On September 20, 2017, Justice Shelston made an endorsement that noted Ms. Norris’s concerns that Mr. Norris had still not paid the costs and, although he allowed Mr. Norris to obtain a settlement conference date, he provided that Ms. Norris may bring a motion “to address the nonpayment of the costs by the Applicant.”

[11] The settlement conference took place before Master Champagne (as she then was) on February 28, 2018. It did not settle and was listed for trial, for an estimated duration of 10 to 15 days. Master Champagne then made a detailed order that required Mr. Norris to produce various disclosure and provide a clear response to the documents requested to be authenticated in Ms. Norris’s request to admit.

[12] Ms. Norris’s request to admit was also an issue before Justice Maranger on December 13, 2016. The Request to Admit was served on September 10, 2016. Justice Maranger extended the time for Mr. Norris to file a Response to the request to admit to January 30, 2017 and stipulated that “the Response must address the documents that are requested to be authenticated “admitted” on a document by document basis; Counsel must explain why they are not admitted – in the Court’s view obvious documents such as GIC, Bank records, etc…should be admitted.” The transcript from the proceeding before Justice Maranger, which is 79 pages in length, reflects extensive discussion on the requirements and timelines for the Response to the Request to Admit.

Events After February 28, 2018

[13] Very little happened after Master Champagne’s order of February 28, 2018. On April 23, 2018, Ms. Norris’s lawyer wrote to Mr. Norris’s lawyer stating:

“In review of [the February 28, 2018 order], your client is already in breach of certain provisions which required him to do certain things within 30 days (which time has passed) and within 60 days (which time is coming shortly).

Please ensure that your client has complied in full with all provisions of the Court Order failing which we will move to have his pleadings struck.

Please consider this letter as notice that we will be pursuing a motion for this relief should your client remain in breach of this and other past orders.

The order dated February 28, 2018 requires my client to provide a consent for your client to obtain his own pension report for my client’s pension benefits at his expense. Please advise if your client plans on proceeding with this and if so, I will prepare and have my client sign the necessary authorization.”

[14] Mr. Norris did not respond to this correspondence in any way.

[15] The next court date in this matter took place on April 12, 2019. That was supposed to be a further settlement conference. The settlement conference was adjourned at the request of Mr. Norris due to a death in Mr. Norris’s lawyer’s family. The settlement conference was rescheduled to May 3, 2019. As part of the adjournment, Justice Summers also scheduled this motion to be heard on April 23, 2019.

Motion to Strike

[16] Mr. Norris served his responding affidavit on April 21, 2019, which was Easter Sunday. Although this material was served late, Ms. Norris consented Mr. Norris’ affidavit and factum being filed in order to prevent a further adjournment, on the condition that Ms. Norris be allowed to file her responding affidavit sworn April 23, 2019. Mr. Norris objected and, if I allowed Ms. Norris’s affidavit, sought a further adjournment to file a file a response. I denied his objection and accepted both affidavits.

The Law

[17] Rule 1(8) of the Family Law Rules provides 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, including,

(a) an order for costs; (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.

[18] Rule 24(13) provides that a judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party ordinarily resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs. O. Reg. 114/99, r. 24 (13).

[19] In addition, pursuant to Rule 2, the primary objective of the court is to decide cases justly; that includes the court enforcing its own orders and ensuring that the parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.

[20] The legal principle governing the exercise of judicial discretion to strike a party's pleadings is a three-pronged test as follows:

(1) Is there a triggering event justifying the striking of pleadings? (2) Is it appropriate to strike the pleadings in the circumstances of the case? (3) Are there other remedies in lieu of striking pleadings that might suffice?

[21] The power to strike out a party’s pleadings should be used sparingly and only in exceptional cases: Roberts v. Roberts, 2015 ONCA 450. In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92.

[22] In Manchanda v. Thethi, 2016 ONCA 909, the Court of Appeal upheld the trial judge’s decision to strike pleadings in the face of non-compliance with the number of court orders, including disclosure orders. The Court of Appeal dismissed the appeal since, first, it found that the circumstances were exceptional and egregious and had considered the factors in Kovachis v. Kovachis, 2013 ONCA 663, including that the breach was wilful and that the non-complying party had not disclosed basic documents such tax returns, financial statements, bank account statements, credit card statements, and investment accounts. Secondly, the court stated:

“…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. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450 at para 11. In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligation. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.”

Analysis

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

[23] Mr. Norris has failed to comply with the three previous court orders, being the cost order of December 13, 2016, the cost order of July 21, 2017, and the disclosure order of February 28, 2018. He has not paid any amounts towards the outstanding costs awards.

(a) Failure to comply with Cost Orders

[24] Mr. Norris claims that he is impecunious and therefore he cannot pay the costs owed. But his financial disclosure to date is significantly deficient. It fails to meet the burden that is upon him to support this claim.

[25] For example, Mr. Norris has provided three financial statements, sworn on December 20, 2014, February 17, 2018, and April 21, 2019. His 2014 financial statement reports current income of $24,701. His financial statement of 2018 reports income of $64,224 in 2017. His financial statement, sworn April 21, 2019, reports income of $29,225 and that this was also his income in 2018.

[26] Mr. Norris’s financial statements report that his expenses, which he states total $41,184 per year, have not changed one penny in any of his three financial statements since December 20, 2014. Mr. Norris has not adjusted or reduced his expenses in light of his financial obligation to pay costs. In addition, even though his income was at its highest in 2017, the year after the first cost award was made and the year in which the second cost award was made, he did not make any payments towards the cost owed.

[27] Mr. Norris’s debts have also not changed in any of his financial statements, nor have his assets. In all three of his financial statements, he states that he has no debts and that his current assets total $297,500, plus an amount in a Bank of Montreal account that is “TBD”. No explanation is provided for how he has been covering his yearly deficit without depleting his assets or incurring debt.

[28] I find that Mr. Norris’s financial statements are misleading and untrue. This is also supported by other issues with the statements, which are referred to below. I do not accept that Mr. Norris has not had the financial ability to make any payments, even partial payments, towards the 2016 and 2017 costs orders.

[29] I also note the case law in support of the view that impecuniosity, while it may be a factor in assessing costs, is not a factor in justifying a failure to pay costs once assessed: Peerenboom v. Peerenboom, 2018 ONSC 5796 para 42; Gordon v. Starr; Johanns v. Fulformd, 2011 ONCJ 781 at para 20; Quinn v. Nicholson, 2013 ONSC 245 at pars 17 and 22.

[30] I find Mr. Norris’s failure to comply with the costs orders to be wilful and egregious.

(b) Failure to Comply with Disclosure Orders

[31] Mr. Norris has also failed to comply with his obligations under the February 28, 2018 Order. I find that in doing so, his disobedience has been wilful. The details of the disclosure ordered under the February 28, 2018 Order and Mr. Norris’s compliance with these orders are set out below.

[32] Mr. Norris did not provide any disclosure following the February 28, 2018 Order until he served his affidavit on April 21, 2019, Easter Sunday, two days before this motion was heard.

1. Amend Pleadings

[33] The February 28, 2018 Order provides that Mr. Norris shall have 60 days to further amend his Application to plead facts in support of his claim for an extension of time to make his claim for an equalization payment.

[34] Mr. Norris has not further amended his Application. In his affidavit, he states that his existing pleadings already plead facts in support of an extension of time, in that at paragraphs 20 and 23 he pleads that he is functionally illiterate and that in 2012 he earned $40,529. Mr. Norris’s counsel argues that this is the same thing as pleading that Mr. Norris could not afford a lawyer, but did not qualify for Legal Aid and, further, that this is the same thing as pleading the material facts in support of his claim for an extension of time.

[35] The difficulty with Mr. Norris’s position is, of course, that the February 28, 2018 Order was made in the face of the existing pleadings and found those pleadings, upon which Mr. Norris now relies, deficient.

[36] Mr. Norris has not complied with this term of the 2018 order.

2. Request to Admit

[37] The February 28, 2018 Order provides that Mr. Norris’s counsel shall review each document in Ms. Norris’s request to admit and shall provide Ms. Norris with a yes or no answer as to whether he authenticates the said document. If not, he shall provide reasons for why not, as set out in the Order of Justice Maranger.

[38] In his April 21, 2019 affidavit, Mr. Norris finally provides a response to the documents requested to be admitted. In doing so, Mr. Norris objects to a significant number of the documents on the basis that they are privileged or hearsay. Without determining the validity of Mr. Norris’ various objections, these responses were first ordered to be provided by Justice Maranger on December 13, 2016. They are over two years late and being provided on the eve of trial. Although Mr. Norris has now technically answered this obligation, his conduct in doing so at the last minute adds to the context that supports the findings of egregious conduct with respect to the other outstanding matters.

[39] It is also concerning that in Mr. Norris’s April 21, 2019 affidavit, he argues that he should not have to provide a further response to the request to admit and that Ms. Norris should have instead scheduled questioning. This is despite the fact that Mr. Norris was ordered to provide a further response to the request to admit on two occasions – by Justice Maranger and Master Champagne. Mr. Norris’s position is also particularly concerning given that the transcript from the proceeding before Justice Maranger shows that there was significant discussion on this issue, ending with Mr. Norris’s counsel stating that he could have the response to the request to admit by the Friday following the motion. When Ms. Norris’s advised that she did not object to receiving it by the end of January 2017, this was the time period ordered by Justice Maranger. Mr. Norris’s position that he should not have had to provide a response to the request to admit is an attempt to re-litigate an issue that has already been decided by the court on two occasions.

3. Bank Statements for May 7, 2009

[40] The February 28, 2018 Order provides that both parties shall, within 90 days, provide one another with copies of all bank statements for all accounts and lines of credit or other credit, as at May 7, 2009, if not already provided.

[41] Mr. Norris has not produced any such statements.

[42] Mr. Norris states that he is unable to obtain the statements. Mr. Norris states that he has requested his file from his previous lawyer and it has not been provided, and that he believes his previous lawyer is maintaining a solicitor’s lien on the file. No further explanation is provided, nor evidence in support of his efforts. The suggestion of a solicitor’s lien is also inconsistent with Mr. Norris’s financial statement sworn April 21, 2019 that does not disclose any debts.

[43] Mr. Norris states that Ms. Norris has also not provided any bank statements from May 7, 2009. From the material before me, however, this is not true. The correspondence attached as exhibits to Ms. Norris’s affidavits disclose that she has provided significant financial disclosure to Mr. Norris, including many statements that cover the May 7, 2009 period. This includes, for example, correspondence dated May 10, 2010, at points 4 to 12; and correspondence dated March 16, 2016, at paragraphs 6 and 7a. Accounts for which statements were not provided for the May 2009 period appear to be either joint accounts with Mr. Norris, which Mr. Norris could also obtain, or Mr. Norris’s own accounts.

[44] Mr. Norris has not complied with this term of the February 28, 2018 Order. Given the evidence before me, I find that his failure to comply with this term is wilful.

4. Bank Statements for February 2008 to August 2009

[45] The February 28, 2018 Order provides that Mr. Norris shall, within 90 days, provide Ms. Norris with copies of all of his bank statements for all accounts and lines of credit either in Canada, Barbados or elsewhere from February 2008 to August 2009.

[46] Mr. Norris has not produced any such statements.

[47] Mr. Norris states that he is unable to obtain the statements, and that he gave all of the statements to his previous lawyer, who has declined to produce his file. No further explanation is provided, nor evidence in support of his efforts to either obtain his previous legal file or to obtain copies from the bank.

[48] Mr. Norris has not complied with this term of the February 28, 2018 Order. Given the evidence before me, I find that his failure to comply with this term is wilful.

5. Updated Financial Statement and Net Family Property Statement

[49] The February 28, 2018 Order provides that Mr. Norris shall, when 90 days, provide Ms. Norris with an updated and complete Financial Statement and Net Family Property Statement.

[50] Mr. Norris did not provide an updated financial statement until serving his financial statement, sworn April 21, 2019. He has not provided an updated Net Family Property Statement. In addressing this obligation, Mr. Norris criticizes the net family property statement that has been provided by Ms. Norris and states that they will both have to file updated Net Family Property Statements in advance of the upcoming settlement conference. This is not an answer to his failure to comply with the February 28, 2018 Order. Mr. Norris does not provide any explanation for his 14 month delay in providing his financial statement, especially given the settlement conference that was scheduled for April 12, 2019, nor his failure to provide an updated Net Family Property Statement.

[51] Mr. Norris has not complied with this term of the February 28, 2018 Order. Given the evidence before me, I find that his failure to comply with this term is wilful.

6. Pension Authorization

[52] The February 28, 2018 Order provides Ms. Norris shall, within 30 days, provide Mr. Norris with an authorization permitting him to obtain an update of Ms. Norris’s pension valuation at his own expense.

[53] Ms. Norris’s lawyer wrote to Mr. Norris’s lawyer on April 23, 2018 offering to provide the pension authorization. Mr. Norris did not respond to this correspondence. Mr. Norris has not taken any steps to have Ms. Norris’s pension valued. In his affidavit, Mr. Norris criticizes Ms. Norris’s pension valuation report and states she has an obligation to have her own pension valued, despite the fact that this contradicts Master Champange’s order.

[54] Mr. Norris has not done anything to obtain a pension valuation for Ms. Norris’s pension. However, this term was permissive on Mr. Norris, and not obligatory. Mr. Norris is not in breach of this term of the February 28, 2018 Order.

7. Schooling

[55] The February 28, 2018 Order provides that Ms. Norris shall, within 60 days, provide Mr. Norris with proof of the children’s enrolment in full time secondary and post-secondary school.

[56] Mr. Norris argues that Ms. Norris is in breach of the order because he states she has not provided this information. There is correspondence on the circumstances of the children’s schooling issue from Ms. Norris’s lawyer, although it predates the 2018 order (being dated March 16, 2016). But given the overall situation, and the other significant disclosure that Ms. Norris has provided, any failure on her part to provide this information does not excuse Mr. Norris’s conduct.

8. Seizure of Boat

[57] The February 28, 2018 Order provides that Mr. Norris shall use his best efforts to obtain documentary evidence in relation to the alleged seizure of his boat by creditors.

[58] Mr. Norris has not provided any documentation in support of the seizure of his boat with the exception of stating that he has provided “an article dated March 20, 2017 and photos to show his fishing trawler, the Cape Chidley, is moored in the Bay of Nettle off the coast of St-Martin after it was seized by creditors and stripped of any saleable equipment and parts.”

[59] It is not clear when this article and photo were provided. Mr. Norris does not provide any explanation for why he has been unable to produce any other documentation, such as in support of the debt that gave rise to the seizure, notice of the seizure, copies of any litigation surrounding the seizure, transfer of title, etc. In addition, none of Mr. Norris’s financial statements report this boat as an asset, at any time, nor any debts in relation thereto.

[60] I find that Mr. Norris has not made best efforts to obtain documentary evidence in relation to the alleged seizure of his boat and that this breach is willful.

9. Ms. Thompson’s File

[61] The February 28, 2018 Order provides that Mr. Norris shall, within 30 days, advise Ms. Norris if he is prepared to produce Ms. Thompson’s file with respect to her representation of him and if not, Ms. Norris is granted leave to bring a motion for disclosure of the said file in light of Mr. Norris’s intention to call Ms. Thompson as a witness at trial.

[62] Mr. Norris has not produced Ms. Thompson’s file. He states in his affidavit sworn April 21, 2019, for the first time, that he will not be calling her as a witness but will instead call John Piazza, the real estate lawyer who handled the sale of his business and rental apartment in 2007 to provide evidence that Mr. Norris is functionally illiterate, Ms. Norris handles the finances, and that Ms. Norris provided the instructions on the sale.

[63] Mr. Piazza is not listed as one of Mr. Norris’s witnesses in the Trial Scheduling Endorsement Form. Mr. Norris does not include in his affidavit whether or not he has produced a copy of Mr. Piazza’s file.

10. Valuation of Matrimonial Home

[64] The February 28, 2018 Order provides that Mr. Norris shall be entitled to have a real estate agent visit the home to provide him with an opinion as to the value of the home. Mr. Norris is also entitled to obtain a proper professional appraisal of the home should he so choose, which appraisal shall be at his expense. Ms. Norris is required to cooperate with both of these options.

[65] Mr. Norris has not produced an opinion of value for the matrimonial home nor an appraisal. He criticizes the valuation produced by Ms. Norris and states “I have requested an opinion letter from [X], a real estate agent with [Y]. The Respondent has not cooperated and refused to permit [X] to attend at the matrimonial home.” No documentation is provided in support of these efforts, nor does Mr. Norris state when such efforts were made and why they were not made earlier. It appears that any efforts by Mr. Norris to obtain an opinion letter of value have only been made in the past few days. In her responding affidavit, Ms. Norris states that “as of our last court attendance on April 12, 2019, the Applicant and/or his lawyer had never requested the attendance of a real estate agent or professional real estate appraiser.”

[66] The order did not impose a time period for such a valuation to occur, and in fact Mr. Norris was not required to get any valuation at all. But his delay in taking any steps to do so until the eve of trial, and not before the settlement conference that was supposed to take place on April 12, 2019, is concerning.

11. Proportionality

[67] Compounding these issues are the concerns with Mr. Norris’s financial disclosure when looked at as a whole. Mr. Norris has provided three financial statements, sworn December 20, 2014, February 17, 2018, and April 21, 2019. The statements have slightly different income information, but are exactly the same with respect to expenses, and assets and debts at the date of marriage, date of valuation, and on the date of the statement. Neither list any bank accounts except for “BMO TBD”. No bank account numbers are provided. No bank accounts are shown for Barbados, despite Mr. Norris spending significant periods of time there, intending to operate a business there (the fishing trawler), transferring assets there (financial contributions to the fishing trawler), and having property seized there (the fishing trawler). Neither statement discloses any debts, despite Mr. Norris representing that he is operating at a significant yearly deficit, that his boat was seized, and his previous lawyer is claiming a lien on his file.

[68] Ms. Norris has also now discovered that in July of 2017, Mr. Norris’s current lawyer registered a Charging Order against his interest in the matrimonial home in the amount of $53,458.04 for unpaid legal fees. This was pursuant to a certificate of assessment to which Mr. Norris consented. Mr. Norris had direct knowledge of this debt yet failed to disclose it in both his 2018 and 2019 financial statements.

[69] Mr. Norris has failed to meet his obligation to provide accurate financial statements. His statements are misleading and untrue. His failure to provide further financial disclosure, particularly as required under points 3, 4, 5 and 8 above, given the significant concerns with his other disclosure, rises this situation to that of an exceptional circumstances that calls for pleadings to be struck.

[70] Given all of the circumstances set out above, I find that there has been a triggering event that justifies striking Mr. Norris’s pleadings. His disobedience with the previous orders, including the two cost orders and the disclosure order, is willful and egregious.

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

[71] I find that it is appropriate in the circumstances of this case to strike Mr. Norris’s pleadings. This is particularly so given the overall lack of disclosure provided by Mr. Norris, and his failure to make even partial payments with respect to the cost orders.

[72] Mr. Norris argues that his pleadings should not be struck because Ms. Norris should have brought this motion earlier. I do not agree. Mr. Norris has an obligation to comply with court orders and he should have been aware of this, and the potential consequences if he failed to do so. These potential consequences were brought to his attention by Justice Shelston on September 20, 2017 and again by Master Champagne on February 28, 2018, both of whom specifically provided for Ms. Norris to bring a motion to address his non-compliance. These potential consequences were repeated by Ms. Norris’s counsel in his letter of April 23, 2018.

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

[73] The third step of the test is the examination of other remedies that might be appropriate in lieu of striking pleadings. The primary objective of this court is to decide cases justly. This includes the court enforcing its own orders and ensuring that parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.

[74] Given Mr. Norris’s wilful non-compliance, and the exceptional and egregious circumstances, including that the length of time that Mr. Norris’s non-compliance has been outstanding, and that this matter is scheduled for trial in the trial sittings that commence in ten days, I do not find that any remedies other than striking Mr. Norris’s pleadings will suffice. I do order, however, that in the event that, prior to May 9, 2019, Mr. Norris pays the outstanding costs in full and complies with points 3, 4, 5, and 8 above, which includes an updated and complete financial statement that addresses the deficiencies identified, he may bring a motion seeking to determine whether he should be permitted to participate in some manner at trial, including the possibility of his pleadings being reinstated. Points 3, 4, 5 and 8 above must be complied with to provide even a semblance of adequate disclosure to address the issues raised by Mr. Norris’s claims.

Exclusive Possession

[75] Ms. Norris seeks an order for interim exclusive possession of the matrimonial home. This is due to Ms. Norris discovering that Mr. Norris’s lawyer has registered a Charging Order on title, which was previously not disclosed, and her concern that the charging order may be used to force a sale.

[76] Mr. Norris’s conduct in failing to disclose the Charging Order, and the underlying debt, cannot be justified, particularly in light of the obligations under Rule 13 of the Family Law Rules as well as the terms of the February 28, 2018 Order. Interim exclusive possession of the matrimonial home is granted to Ms. Norris.

Disposition

[77] For the reasons provided above, I make the following order:

1. Mr. Norris’s Application and Amended Application are hereby struck.
2. Ms. Norris may proceed to an uncontested trial in the trial sitting commencing May 13, 2019.
3. In the event that, prior to May 9, 2019, Mr. Norris pays the outstanding costs in full and complies with points 3, 4, 5, and 8 above under the February 28, 2018 Order, which includes an updated and complete financial statement that addresses the deficiencies identified, he may bring a motion seeking to determine whether he should be permitted to participate in some manner at trial, including the possibility of his pleadings being reinstated.
4. Ms. Norris is granted interim exclusive possession of the matrimonial home located at 1265 Henn Drive, Navan, Ontario.
5. If the parties are unable to agree on costs of this motion, Ms. Norris may provide cost submissions of no more than three pages in length, plus any offers and bill of costs, on or before May 10, 2019. Mr. Norris may provide his cost submissions of the same length on or before May 17, 2019.

**Date:** May 3, 2019 **Released:** May 3, 2019 Justice P. MacEachern