Court File and Parties

COURT FILE NO.: FC-19-00000630-0000 DATE: 2023/02/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Amanda Leigh Holden, Applicant AND: Wesley Jordan Ploj, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: Jean LeDrew Metcalfe, Counsel for the Applicant Respondent is Self-Represented

HEARD: February 8, 2023

Endorsement

[1] This motion is brought by the Applicant, Amanda Holden, to strike the Answer of the Respondent, Wesley Ploj, and for an order that this matter proceed to an uncontested hearing. This proceeding relates to both parenting and financial issues.

[2] The motion is opposed by Mr. Ploj.

[3] Essentially, Ms. Holden asserts that Mr. Ploj’s pleadings should be struck for his failure to participate in any meaningful way in this proceeding for many months, his failure to pay costs when ordered to do so, and his failure to comply with a series of court ordered procedural steps. As is set out below, although he filed affidavit material, Mr. Ploj has not responded to the substance of this motion.

[4] For the reasons set out below and on terms also provided below, Mr. Ploj’s Answer is struck. He shall be permitted to seek a reinstatement of his Answer if, by March 17, 2023, he has complied with all of the terms set out in paragraph 36 herein. A return date is provided in the order below.

[5] This decision also sets out the specific limitations on further participation in this matter by Mr. Ploj should he fail to comply with all of the specified terms in paragraph 36.

Materials Reviewed

[6] I have reviewed the following materials on this motion: a. Ms. Holden’s Notice of Motion dated October 11, 2022 b. Ms. Holden’s Affidavit sworn October 5, 2022 c. Mr. Ploj’s Affidavit sworn January 22, 2023 (which appends his affidavit sworn November 1, 2022); d. Ms. Holden’s Affidavit sworn January 31, 2023. e. Ms. Holden’s Application and Form 35.1; f. Mr. Ploj’s Answer and Form 35.1; and, g. Endorsements made in this proceeding.

Background

[7] The parties separated on April 4, 2019, almost four years ago, following an incident of domestic violence which led to criminal charges against Mr. Ploj. Mr. Ploj later pled guilty to assault causing bodily harm and was placed on a probation order.

[8] The parties have two children: Jacob, who is six years old, and Paisley, who is 4 years old. Jacob and Paisley have resided with Ms. Holden since separation and Mr. Ploj has had supervised parenting time with them.

[9] Family and Children’s Services (“FACS”) became involved at separation when the charges were laid against Mr. Ploj. Arrangements for the children to spend time with Mr. Ploj on a supervised basis were originally worked out with the assistance of FACS.

[10] Ms. Holden started court proceedings in November 2019. In her Application, dated November 19, 2019, she seeks relief including: sole decision-making with respect to the children, an order that the children reside with her, and that Mr. Ploj have supervised parenting time. She also seeks child support payable under s. 3 of the Ontario Child Support Guidelines, O. Reg. 391/97, as amended (the “Guidelines”).

[11] Mr. Ploj served and filed an Answer in January 2020 in which he seeks relief including: decision-making responsibility for the children, shared parenting, and child support payable under s. 9 of the Guidelines.

[12] On July 3, 2020, at a case conference, the parties entered into a consent order whereby Mr. Ploj would have time with the children, supervised by his mother, on alternate weekends and one evening each week. On January 14, 2022, following a motion argued on November 10, 2021, Justice Breithaupt Smith made a temporary order that Ms. Holden have temporary decision-making responsibility. These parenting arrangements remain in effect.

[13] Ms. Holden asserts, and I find, that since February 2022, with the exception of now “responding” to this motion, Mr. Ploj stopped meaningfully participating in the proceeding and failed to comply with a series of court orders, as follows: a. He did not serve and file a Request to Admit by January 2, 2022 as ordered by Justice Piccoli on August 20, 2021; b. He did not serve and file an Offer to Settle by February 4, 2022 as ordered by Justice Piccoli on August 20, 2021; c. He did not provide his information to counsel for Ms. Holden for the trial scheduling endorsement form (TSEF) notwithstanding being contacted by counsel to do so, resulting in failure to comply with the order that the TSEF be filed by April 25, 2022 (by Order of Justice Piccoli dated August 20, 2021); d. He failed to attend the first trial management conference (“TMC”) on May 2, 2022, notwithstanding having attended court with counsel on the day that date was scheduled; e. He failed to serve and file a TSEF for the second TMC scheduled, contrary to Justice Piccoli’s Order of May 2, 2022; f. He then failed to attend the second TMC, held July 7, 2022, notwithstanding having been specifically ordered by Justice Piccoli to do so; g. He failed, until February 8, 2023 (and then only at the encouragement of the court on the day this motion was argued), to pay outstanding costs of $3,000 ordered by Justice Breithaupt Smith on January 14, 2022; and h. He failed to pay costs of $325, as ordered by Justice Piccoli on July 7, 2022 when he failed to attend the second TMC.

[14] Ms. Holden’s Notice of Motion and Affidavit in support of this motion were served on October 11, 2022. That affidavit set out the instances of non-compliance listed in paragraph 13 herein.

[15] Rather than serving an affidavit responding to those allegations, Mr. Ploj served a separate 14B motion dated November 2, 2022 seeking shared parenting time and joint decision-making. His Affidavit sworn November 1, 2022 makes a series of allegations against Ms. Holden with respect to her parenting, and does not respond in any way to the motion to strike his Answer. Ms. Holden filed an affidavit responding to that motion, which Motion was dismissed by Justice Taylor on December 1, 2022.

[16] It was anticipated that the matter would proceed to trial in the January 2023 sittings. When the matter came before me in speak-to court, one week in advance of the start of the trial sittings, it was apparent that the motion to strike had not yet been heard. Out of an abundance of caution, I gave Mr. Ploj a further period of time to serve and file an Affidavit responding to the motion to strike.

[17] Mr. Ploj did serve and file an Affidavit as I permitted him to do. Notably, Mr. Ploj’s affidavit, sworn January 20, 2023, still does not respond in any meaningful way to this motion. He does not deny any of the allegations with respect to the non-compliance with court orders.

[18] In oral submissions on this motion, Mr. Ploj explained that he feels the court process has been one-sided, that his concerns have been addressed, and that he is not sure what the purposes are of his involvement in the court process. He seemed to suggest that he did not pay the costs because he disagreed with the orders that were made. Other than having paid the $3,000 the morning that this motion was argued on February 8, 2023 (which amount was due more than 9 months prior on April 14, 2022), he made no suggestion about how he might rectify his non-compliance with the multiple steps with which he has not complied.

Law and Analysis

[19] The primary objective of the Family Law Rules, O. Reg. 114/99 (the “Rules”) is to enable the court to deal with matters justly: see r. 2(2). That includes ensuring that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases: see r. 2(3).

[20] To assist in dealing with matters justly, r. 1(8) provides the court with a range of options where a party fails to obey an order that it considers necessary for the just determination of the matter. Those options include, but are not limited to, an order striking out an Application, Answer, or other document filed by a party, and an order for costs.

[21] In appropriate cases, the court’s obligation to promote the primary objective will require it to dismiss claims, strike a party’s pleadings, or restrict the ability of a party to participate in the trial: see Ahmadi v. Heydari, 2018 ONSC 2682, at para. 118, per Price J. See also Vacca v. Banks (2005), 6 C.P.C. (6th) 22 (Ont. Div. Ct.), at para. 27.

[22] As Price J. held in Ahmadi, at para. 120, citing Manchanda v Theti, 2016 ONSC 3776 at para. 20, aff’d 2016 ONCA 909, leave to appeal refused: … “[w]ithout enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful.” Such tactics cannot be condoned.

[23] However, particularly in family law cases, a party’s pleading should be struck only in exceptional circumstances, where no other remedy would suffice: see Kovachis v. Kovachis, 2013 ONCA 663, 311 O.A.C. 228, at para. 24, per Laskin J. See also Percaru v. Percaru, 2010 ONCA 92, 265 O.A.C. 121, at paras. 47-48. The basis for this principle is that without one side’s participation in the trial, there is a risk that the court will not have enough information or accurate information to reach a just result: see Kovachis, at para. 25.

[24] Before striking pleadings, the court must consider whether that step is proportionate to the breach(es). Thus, in Kovachis, at para. 34, for example, the court found that the decision below to strike pleadings for non-disclosure was not proportionate in a context where much disclosure had in fact been made.

[25] In Van v. Palombi, 2017 ONSC 2492 (Div. Ct.), at para. 30, the Divisional Court identified the three-prong test applicable to the determination of whether to strike pleadings, 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 this case? c. Are there other remedies in lieu of striking pleadings that might suffice? See also Ferlaino v. Hoyes, 2019 ONSC 1261, at para. 21, per Jarvis J.; Mulik v. McFarlane, 2022 ONCJ 555, at para. 21, per Sherr J., citing Ferguson v. Charlton, 2008 ONCJ 1, at para. 64.

[26] In exercising discretion under r. 1(8), the court must consider the primary purpose of the Family Law Rules: see Mulik, at para. 24.

[27] Rule 1(8.4) sets out the consequences of striking out certain documents. Where pleadings are struck, a party is not entitled to any further notice of steps in the proceeding, is not entitled to participate in the case in any way, the matter may be set for an uncontested trial, and the court may deal with the case in the party’s absence, unless the court specifically orders otherwise.

[28] Striking pleadings and denying participation at trial is a drastic remedy. In some cases, it will be more appropriate to strike pleadings but to also exercise discretion to vary the participation rights of a party whose pleadings were struck out rather than to outright deny further participation: see Holly v. Greco, 2019 ONCA 464, at para. 10.

[29] In Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, at paras. 54-55, the Ontario Court of Appeal varied the order below (while still allowing pleadings to be struck) to permit the husband to make an opening statement, cross-examine the wife and the wife’s witnesses, and make closing submissions, with any further participation only as permitted by the trial judge. As Pepall, J.A. explained, at para. 55, this would provide the court with a “richer record” on which to base its decision.

[30] Decisions about parenting arrangements for children must, in accordance with the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, be made in the best interests of children. Numerous factors are set out under s. 24 for consideration by the court in determining what will promote those best interests. It is always preferable for the court to have before it the evidence of both parents when making that determination: see Khan v. Ramsingh, 2019 ONCA 623, at para. 20.

[31] It is for this reason that the Ontario Court of Appeal has instructed judges that utmost caution must used in striking pleadings where children’s interests are involved and that it is generally preferable to avoid using that sanction: see King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267, at para. 31; Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.). See also Mulik, at para. 18, per Sherr J.

[32] In King v. Mongrain, the Ontario Court of Appeal held that it was an error for the court to strike Ms. Mongrain’s pleadings as it left the court virtually bereft of evidence required to make a proper determination of the factors applicable to a best interests determination. In that case, the children were young, had spent most of their life in the care of their mother (whose pleadings had been struck), and there were allegations of violence by Mr. King against her and against the children. Were the mother’s evidence in that case true, the court held, there was a reasonable basis for concern about the children’s safety and that of the mother. In that case, also, participation rights had not been varied by the judge below.

[33] I find on the evidence and the law that it is appropriate to strike Mr. Ploj’s Answer. I make this determination for reasons including the following: a. On the framework set out in Van v. Palombi, above, I have no difficulty concluding that there has been a triggering event. Indeed, there have been several. While the preceding breaches of court orders are noted, Mr. Ploj’s failure to attend the second trial management conference, in the face of Justice Piccoli’s specific order that he do so, would certainly meet that requirement. So too would the failure to serve and file the various documents as required. b. Mr. Ploj is in breach of multiple court orders made over a significant period of time and has provided no reason or explanation for his failure to comply other than that he does not agree with those orders. That is not an acceptable basis for non-compliance. Court orders are not, as has oft been stated, “suggestions.” It does not matter whether he agrees with them. c. By my Order at speak to-court on January 16, 2023, Mr. Ploj was specifically given an “extra” opportunity to respond substantively to this motion yet still failed to do so. As at the hearing of the motion, he had notice of it for almost four months. Yet, rather than provide the court with an explanation for his non-compliance and promptly take steps to remedy it, he took the opportunity to criticize the mother’s parenting by bringing a separate motion (which as set out above was wholly dismissed). d. Mr. Ploj has demonstrated non-compliance with court orders in several ways: not attending court when ordered to do so; not filing documents when ordered to do so; and not paying costs when ordered to do so. This has resulted in duplicated court attendances (two TMC appearances, for example), wasting the resources of the court and of Ms. Holden. This also shows a pervasive disregard for this court’s authority. e. In Kovachis, in the context of a case where pleadings were struck for non-disclosure, the Ontario Court of Appeal held that the principle of proportionality must be considered. Here, I find that the specific breaches of court orders warrant the sanction I have found. Specifically, the breaches in this case cumulatively interfere with the timely resolution of the case for the benefit of the children. Requests to Admit, Offers to Settle, participating in trial management conferences all move the case to resolution. Here, the multiple breaches have slowed the case to a grind, absorbing undue court time and causing unnecessary delay to the detriment of the children and Ms. Holden. Mr. Ploj has shown no interest in being involved in this case or in adhering to the Rules. f. Ms. Holden has dutifully followed the appropriate procedures and rules during this litigation. She has attended court when required to do so, and she has followed the applicable court orders. It is unfair to the compliant party for there to be no consequences to the non-compliant party. g. As noted, this court is obliged to consider less drastic measures which could be employed to effect compliance with the orders made. In this case, other measures have not been effective: cost orders have not generated compliance; second chances (such as my order permitting further time to file responding materials to this motion) have not generated meaningful participation; adjournments have not put the matter on the right track. Meanwhile, the resources of the court and of Legal Aid Ontario (as noted by Ms. Holden’s counsel) are squandered and thereby not available to other families. And, the children continue to wait. h. Being deeply cognizant of the admonition in King v. Mongrain and the direction of the Ontario Court of Appeal that striking pleadings is an exceptional remedy, I find that this is the kind of exceptional case where striking pleadings is appropriate, notwithstanding that this litigation includes parenting issues. i. This case is distinguishable from King v. Mongrain in important ways. Substantively, it does not appear that Mr. Ploj’s Answer poses a serious challenge to Ms. Holden’s position in the litigation. The children have been in her primary care since separation, now four years ago. Most of the evidence about what is or is not in the children’s best interests will likely be available through Ms. Holden or through her witnesses. Where in King v. Mongrain, the party whose pleadings were struck was in fact the primary caregiver and the likely source of much evidence relevant to best interests, here, the opposite situation obtains.

[34] Further, I do not find that this is a case where my discretion should be exercised to not sanction the non-compliance, which has been persistent. As noted, there have been multiple breaches of court orders and little apparent commitment by Mr. Ploj to bring himself into compliance. While I do acknowledge that Mr. Ploj did pay one of the two costs awards against him on the day of the motion, this was nine months after the ordered amount was due, and the balance of the orders remain “not complied with” despite notice of almost four months, and a second chance to file an affidavit explaining his non-compliance, documenting late compliance, or even setting out his plan for compliance.

[35] In recognition that this case involves parenting issues, and because the object of this court’s endorsement is compliance and not punishment, I exercise my discretion to provide a mechanism for Mr. Ploj to have his Answer reinstated upon timely compliance with the outstanding orders.

[36] Specifically, to avail himself of this opportunity, Mr. Ploj shall, by March 17, 2023: a. Serve and file a Request to Admit (Form 22) under Rule 22; b. Serve and file an Offer to Settle under Rule 18; c. Complete the Respondent’s portion of the trial scheduling endorsement form, serve it on Ms. LeDrew Metcalfe, and file it with the court; d. Pay the outstanding cost order of $325.00 to Ms. LeDrew Metcalfe in trust; and e. Pay costs of this motion of $2,000, as set out below.

[37] I note, by way of assisting Mr. Ploj, that the forms which are required to be completed can be found at www.ontariocourtforms.on.ca. The Request to Admit is Form 22. The trial scheduling endorsement form is not numbered but available on the same website. He was also served with a copy by Ms. Holden’s counsel. There is no prescribed form for the Offer to Settle but Mr. Ploj should review Rule 18 of the Family Law Rules before preparing his Offer to ensure that it meets the requirements of the rule.

[38] This motion is returnable before me on Tuesday, March 28, 2023 at 9:00 a.m. The appearance will take place by Zoom. a. Mr. Ploj shall have until March 21, 2023 to serve and file an affidavit (4 pages or less, double spaced), documenting the steps he has taken to comply with the terms of paragraph 36 herein and producing proof of compliance as exhibits; b. If it is Ms. Holden’s view that Mr. Ploj has not complied with the requirements of paragraph 36 herein, she shall have until March 27, 2023 to serve and file a brief affidavit setting out what she sees as the deficiencies in compliance by Mr. Ploj. c. These affidavits shall be filed through the family law portal but shall also be emailed to the Trial Coordinator at Kitchener.Superior.Court@ontario.ca to ensure that the materials are before me on March 28, 2023. The header of the email should indicate that the materials are to be directed to me, further to this endorsement.

[39] If, on the return date I find that Mr. Ploj has not fully complied with paragraph 36 herein, his pleadings shall remain struck. In the normal course this would end his participation in this matter and his right to receive notice of further steps.

[40] However, in that event, recognizing that this matter includes parenting issues, I exercise my discretion under Rule 1(8.4) to permit him limited participation (rather than no participation) in the trial as follows: a. Mr. Ploj may make an opening statement; b. Mr. Ploj may retain a lawyer to cross-examine Ms. Holden (he may not do so personally in light of the domestic violence history in this case); c. He may cross-examine witnesses called by Ms. Holden; d. Mr. Ploj may make a closing statement; e. However, Mr. Ploj may not testify, tender documentary evidence, or call witnesses.

[41] In crafting this remedy, I am conscious of the need to have a proper evidentiary foundation before the court on parenting issues, and the obligation to exercise utmost caution as directed by the Court of Appeal in King v. Mongrain. I rely on the example provided in Mullin v. Sherlock as to how this can effectively be done. I also find that this variation of participation rights would permit Mr. Ploj to test Ms. Holden’s claims and provide a richer evidentiary record for the court, while depriving him of the ability to pursue his own claims.

[42] In my view, this outcome, which obtains only if Mr. Ploj does not put himself in compliance with the orders as set out in paragraph 36 herein, recognizes, as found in Ahmadi v. Heydari, 2018 ONSC 2682, at para. 133, that allowing a party to be heard without remedying non-compliance would amount to an abuse of process.

Costs

[43] Both parties made submissions on costs of this motion when it was heard.

[44] Ms. Holden sought costs of $3,000 if successful.

[45] Mr. Ploj sought an order that each party bear their own costs if he were to be successful.

[46] I have considered Rule 24 and the principles set out in the case law on awarding costs. I find that the sum of $2,000 is fair and reasonable having regard to all of the circumstances. Ms. Holden has been successful on this motion. Mr. Ploj has behaved unreasonably. Counsel’s rate is reasonable in light of her experience.

[47] Mr. Ploj shall pay this costs award no later than March 17, 2023 to counsel for Ms. Holden.

L. Madsen, J. DATE: February 24, 2023