DATE: 20020925
DOCKET: C36810
COURT OF APPEAL FOR ONTARIO
LASKIN, MACPHERSON AND SIMMONS JJ.A.
JOSEPH MURANO
Kenneth J.M. Coull for the appellant
Applicant (Appellant)
- and -
JUDITH MURANO
Mark S. LaFrance for the respondent
Respondent (Respondent in Appeal)
Heard: February 12, 2002
On appeal from the judgment of Justice Cheryl Robertson of the Superior Court of Justice dated July 4, 2001
SIMMONS J.A.:
[1] Mr. Murano failed to comply with orders made in a divorce proceeding requiring that he pay interim child support, interim spousal support, and costs, and requiring that he provide detailed financial disclosure. On June 13, 2001, Dunbar J. found Mr. Murano in contempt. However, she adjourned the matter to June 25, 2001 and ordered that Mr. Murano be imprisoned for seven days if he did not, in the meantime, comply with orders dated March 7, 2001, April 11, 2001, and April 18, 2001.
[2] On July 4, 2001, Robertson J. found that Mr. Murano was making some efforts at compliance with the terms of the three orders, but that he had not complied fully. She ordered that a warrant of committal issue. She also ordered that Mr. Murano’s pleadings be struck on July 11, 2001, but reserved his right to make submissions “on the pleadings remaining before the court and appropriate costs sanctions” in the event he complied with the June 13, 2001 order.
[3] Mr. Murano appeals from the July 4, 2001 order. The main issues on appeal are: i) whether the motions judge erred by enforcing payment orders by way of contempt proceedings; ii) whether the motions judge erred by enforcing the June 13, 2001 order for imprisonment without conducting a full hearing into the allegations of contempt; and iii) whether the motions judge exceeded her jurisdiction by striking Mr. Murano’s pleadings.
[4] For the reasons that follow, I would dismiss this appeal.
Background
[5] In October 2000, Mr. Murano applied to the Superior Court for custody of the parties’ fifteen-year-old son. Ms. Murano delivered an Answer-and-Counterclaim requesting a divorce, equalization of net family properties, custody, child support, and spousal support. Although Mr. Murano claimed that the parties separated shortly after their son was born in 1985, Ms. Murano alleged that they separated on October 22, 1998.
[6] On March 5, 2001, Mr. Murano swore a financial statement indicating that his income was $4,208.15 per month and that he was employed by 1324657 Ontario Ltd. He also swore an affidavit indicating that, in August 1998, the Bank of Montreal paid $6,915,292.70 into court on account of a judgment owing to Mr. Murano and several corporations. He said that, after payment of outstanding judgment debts, the court paid net proceeds of $3,224,089.59 to their counsel. He attached a trust statement from his counsel as of August 26, 1998.
[7] Aside from legal fees and one payment to the Receiver General, the trust statement indicated that counsel paid the net judgment proceeds to two companies (not the companies to whom the judgment was owed) and one individual (not Mr. Murano). Approximately $2.2 million was paid to 1309492 Ontario Inc. Mr. Murano did not directly explain why this, or any other, payment was made. Rather, he said that the losses forming the subject matter of the judgment “were substantially those of 873047 Ontario Limited”, and that his father, his brother, and he, are equal owners of the shares in that company. He said that his father is the sole director and shareholder of 1309492 Ontario Inc., and attached a list of payments made by that company between August 14, 1998 and October 22, 1998, totalling $1,541,066.50.
[8] Mr. Murano claimed that, as of October 22, 1998, he, his father, and his brother “had approximately $513,398.20 remaining from the money received from the Bank of Montreal”. He said that on October 22, 1998, his personal debts were $2,333,916.28, whereas they were $1,022,965.60 on the date of his affidavit.
[9] Ms. Murano obtained three interim orders, dated March 7, 2001, April 11, 2001, and April 18, 2001, respectively, making detailed provision for custody, access, child support, spousal support, possession of the matrimonial home, and production and discovery. The March 7, 2001 order, in particular, was extensive. In addition to requiring that Mr. Murano pay child and spousal support totalling $1,541 per month and costs of $7,500, and that he refrain from dissipating assets, it effectively required that he make complete disclosure of his financial affairs from 1985 to the date of the order.
[10] The March 7, 2001 order required that Mr. Murano deliver a “fresh, complete Financial Statement”, and that he provide “all supporting documentation” relating to any entry concerning assets and liabilities on his Financial Statement, within 14 days. It also required Mr. Murano to provide 22 specific categories of information and documents within 21 days. The documents and information to be produced included the following:
- tax returns and notices of assessment from 1985 to 2000 (but excluding 1993-1997);
- details and records of all businesses in which he had an interest from 1985 onward including any transfers of interest;
- complete disclosure of how the proceeds of the Bank of Montreal judgment were distributed, including documents relating to tracing funds;
- cheque registers and bank books for the last five years;
- details of any positions as officer or director of a business that he held within the last five years;
- details concerning the status of any litigation in which he or any of his businesses were currently involved;
- documents and information relating to assets he had dissipated since January 1, 1998;
- documents and information relating to the nature of his employment and rate of remuneration for the last five years, together with disclosure of the nature of his work for 1324657 Ontario Ltd.;
- documents and information concerning any agreements he had entered into for the acquisition of real estate or business interests on behalf of himself or a third party; and
- documents and information relating to any guarantees that he had given within the last five years.
[11] The April 11, 2001 order required that Mr. Murano deliver an affidavit of documents within 21 days, and that he pay $5000 to Ms. Murano forthwith for anticipated costs of disclosure and discovery. In addition, if Mr. Murano defaulted in delivering his affidavit of documents within 21 days, the April 11, 2001 order required that he pay a further $5000 for anticipated expenses.
[12] The April 18, 2001 order dealt with custody and access issues.
[13] Counsel for Mr. Murano delivered a bag of documents to counsel for Ms. Murano in court on April 11, 2001. Mr. Murano discharged his counsel following the motion that was heard on that day.
[14] On May 7, 2001, Mr. Murano wrote a letter to counsel for Ms. Murano enclosing documents and setting out information in purported compliance with the March 7, 2001 order. He claimed that he had been a director and shareholder of five companies since 1985, but did not disclose the particulars of one of them. With respect to 873047 Ontario Limited, his main co-plaintiff in the Bank of Montreal action, Mr. Murano said:
873047 controlled 828555,828556, 828557, and Hilton Video Ltd. … All of these companies ceased doing business in March, 1991 when the Bank of Montreal appointed a receiver. I was the sole shareholder of 873047 until 1995, when I transferred 2/3 of the shares to my father and brother.
[15] In his May 7, 2001 letter Mr. Murano claimed that he had provided the required information about the distribution of the Bank of Montreal judgment proceeds, that he had not dissipated any assets since January 1, 1998, that he had not entered into any agreements for the acquisition of real estate, and that he had not guaranteed any loan, mortgage, lease, or any other encumbrance. As for employment, he said that he worked for T-Bones Restaurant from October to mid-February, that he could no longer physically work in the restaurant because of back problems, that he received one cheque for $24,000, and that he had not had any other employment. He said he was no longer working in the business, but that he had assisted in acquiring it and was the manager.
[16] On May 23, 2001, Ms. Murano swore an affidavit in support of a contempt motion returnable on June 13, 2001. She set out numerous alleged deficiencies in Mr. Murano’s compliance with the terms of the interim orders. In particular, she claimed that the only new material that Mr. Murano had provided concerning the judgment proceeds was an uncatalogued bag of bank statements and cancelled cheques for 1309492 Ontario Inc. She pointed out that Mr. Murano had not provided any employment records. Moreover, she filed a copy of a Transfer of Land for 181½, 183-185 Division Street, Kingston, as well as a $175,000 mortgage of that property, both of which were registered on May 1, 2001. The property was transferred to 1324657 Ontario Limited. Although Mr. Murano claimed that he no longer worked for 1324657, he signed the mortgage as president of that company. He also signed the mortgage in his personal capacity, as guarantor.
[17] Mr. Murano was personally served with the contempt motion on May 26, 2001. He re-retained his former counsel on June 12, 2001. Although Mr. Murano swore an affidavit of documents on June 12, 2001, that affidavit was not before the court on June 13, 2001.
[18] The June 13, 2001 motions judge made the following findings in a handwritten endorsement:
Applicant has not paid the earlier costs order and has not yet provided appropriate disclosure. Applicant served an Affidavit [^1] on Respondent’s counsel late last week 5 p.m. He acquired property in the interim as President of a company & as personal guarantor and yet swears an Affidavit to the contrary. He has clearly contravened earlier order for non-dissipation….
[Respondent’s counsel] makes submissions before the Court as to his request that the Applicant be found in contempt on the basis he has failed to abide by court orders, despite the very clear directions and wording contained therein.
[Applicant’s counsel], who was fired by Mr. Murano after the order of April 11, 2001 was granted, was re-retained yesterday, merely submits that if he had been able to file his client’s Affidavit sworn yesterday, he would make submissions but that that document is not [sic]. The Applicant, based on the evidence before the court, is clearly in flagrant violation of the court’s orders and has made clear fabrications and lies in his Affidavits.
[19] In oral remarks, the motions judge said:
[I]t’s quite clear that … he has been clearly found to have not just mislead the court but deliberately lied about some of those documentary issues…
[20] Paragraph 1 of the formal order dated June 13, 2001 sets out the particulars of the contempt. The motions judge found that Mr. Murano failed to:
a) abide by the terms of access orders; b) pay costs as set forth in the orders; c) pay interim child and spousal support; d) serve and file an Affidavit of Documents; e) pay the sum of $5,000. In anticipated costs of disclosure and the examination for discovery; f) pay the further sum of $5,000. In additional anticipated expenses arising from failure to serve … an affidavit of documents; g) serve and file a fresh Financial Statement; and h) satisfy the terms of the production and disclosure order dated March 7, 2001.
[21] The June 13, 2001 motions judge adjourned the motion to June 25, 2001 on terms that Mr. Murano was to be imprisoned for seven days if he failed, in the intervening period, to comply “with all outstanding Order of this Court for disclosure” and “all terms and conditions” of the three interim orders.
[22] The June 25, 2001 return date was subsequently adjourned to July 4, 2001. Ms. Murano and Mr. Murano each delivered an affidavit sworn June 29, 2001 confirming the status, as of that date, of compliance with the three interim orders.
[23] In her affidavit sworn June 29, 2001, Ms. Murano disclosed that Mr. Murano delivered several files containing documents to her counsel on June 11, 2001. Nine of the files were labelled with the name of either a business or a corporation. They contained financial statements and tax returns. Only one of the companies was referred to in Mr. Murano’s May 7, 2001 letter. One of the files was labelled “Personal”. It contained tax returns, a notice of assessment, a deposit slip, and a one-page document titled “Proceeds of Judgment and Distribution”. The latter document reflected total judgment proceeds of $6,965,292.70 rather than the $6,915,292.70 indicated previously, and payment of the full amount to thirteen parties.
[24] In her affidavit, Ms. Murano pointed out that Mr. Murano had not delivered a fresh financial statement, and that he was in default in making payments of child support, spousal support, costs, and interim disbursements. She also particularized alleged deficiencies in his productions made pursuant to the March 7, 2001 order and appended an affidavit of documents sworn by Mr. Murano on June 12, 2001, which she claimed was deficient.
[25] In his affidavit sworn June 29, 2001, Mr. Murano clarified and expanded on several aspects of the statements and information contained in his May 7, 2001 letter. He claimed that the company that owns T-Bones Restaurant purchased the 185 Division Street property as a result of monies Mr. Murano borrowed from a third party. Mr. Murano said that the proceeds that he contributed were in repayment of the loan. He attached a trust declaration that he signed on behalf of 1324657 Ontario Ltd. in favour of the third party.
[26] Mr. Murano also acknowledged that he had settled an action that was to have proceeded to trial in mid-May for $60,000. He claimed that he received net proceeds of $43,248.52, and that he had used the money to pay personal expenses.
[27] As for his employment, Mr. Murano stated:
I participate in a managerial capacity in the family business known as T-Bones Restaurant. I have to reduce my active involvement in the business because of back problems... I use the restaurant as a base for the conduct of my affairs generally.
T-Bones Restaurant is in financial trouble and it is the intention of my father and me to close it at the end of June. The restaurant has been operating on an overdraft…
The operating account has been used to pay my personal expenses including my vehicle lease….
[28] Mr. Murano confirmed that, on June 14, 2001, he instructed his accountant “to prepare a statement of the disposition of the Bank of Montreal judgment funds”. He attached a letter from his accountant, dated June 29, 2001, in which his accountant stated that Mr. Murano had a history of poor record-keeping and that it was the accountant’s understanding that Mr. Murano started gathering the necessary information between June 14 and 22. The accountant stated in the letter that he had been working on the request since June 26 and that, if he got “the co-operation of financial institutions and other parties”, he expected to be in a position to deliver a report on July 9, 2001.
[29] In a written endorsement dated July 4, 2001, the motions judge noted that Mr. Murano’s counsel “acknowledges that full compliance has not be made on the prior orders [but] indicates [Mr. Murano’s] accountant … can produce the balance, including the corporate records within one week.” She ordered the pleadings struck on July 11, 2001 at 10 a.m., but also directed that “[s]hould Mr. Murano comply fully with the order he can make submissions on the pleadings remaining before the Court and appropriate costs.” She also noted:
The June 13/01 order … was clear and unambiguous. Paragraph 4 outlined the consequence for failure to comply. He did not comply. Therefore a Warrant of Committal shall issue as requested for 7 days.
[30] In oral remarks, she said [^2] :
[The parties] agreed that there’s no jurisdiction … to deal with paying money by contempt proceedings …He is by material indicating some efforts to comply with [the June 13, 2001] order and has given some explanation for some difficulties that he has in complying with the order…[The June 13, 2001 order] was clear and unambiguous…
Firstly, dealing with the motion to strike pleadings. [Counsel] submits substantial compliance on the previous orders but acknowledges full compliance has not been made. Indicates his accountant … can provide the balance including the corporate records, which is a very substantial chunk of information that is required. He says that that can be produced within one week. So I’m ordering that the pleadings will be struck on July 11th…
With respect to the balance of the matter, there has been an acknowledgement that there was not compliance, proven financial statement was not filed and very clearly, when one looks at the previous history of orders and the [June 13, 2001] order … that was to be done prior to the return today. There has been conceded that there has been some false information with respect to disclosure on the property in May. There has been failure to disclose corporate books and records. The issue with respect to managerial capacity and something that should have been disclosed … There are substantial issues of non-compliance that were before the court.
It is not enough that there was substantial compliance, in this case I find Mr. Murano had plenty of time to have addressed these issues and instructed his accountants properly to provide whatever assistance or information that he needed prior to today. He had not only the benefit of the comments and order of [June 13, 2001], but he had the advantage of knowing the penalty well in advance because [the motions judge] wrote that it would be seven days if he failed to comply. And therefore a warrant of committal shall issue as requested for seven days.
Grounds of Appeal
[31] Mr. Murano raises the following grounds of appeal:
i) the motions judge erred by enforcing payment orders by contempt proceedings; ii) the motions judge erred by failing to conduct a proper hearing concerning the issue of contempt; iii) the motions judge erred by delegating her judicial function of supervising the production of documents to the respondent; and iv) the motions judge erred by striking out Mr. Murano’s pleadings.
Analysis
i) Did the motions judge err by enforcing payment orders by contempt proceedings?
[32] Mr. Murano correctly points out that the paragraphs 1(b), (c), (e), and (f) of the June 13, 2001 order, which set out particulars of his contempt, refer to failing to comply with payment orders. He submits that payment orders cannot be enforced by contempt proceedings brought under the Family Law Rules, O.Reg. 114/99 as amended, and that the motions judge erred in doing so.
[33] I agree that a payment order cannot be enforced by contempt proceedings brought under the Family Law Rules. However, I do not agree that the motions judge was enforcing a payment order when she directed that a warrant of committal issue in accordance with the June 13, 2001 order.
[34] In Forrest v. Lacroix Estate (2000), 2000 5728 (ON CA), 48 O.R. (3d) 619 (C.A.) this court held that the effect of rules 60.05 and 60.11(1) of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, is to remove the court’s inherent jurisdiction to use the contempt power to enforce an order for the payment of money in cases governed by the Rules of Civil Procedure. It was taken as a given that the plain language of rules 60.05 and 60.11(1) do not permit contempt proceedings under those rules to enforce orders for the payment of money. Although there are differences in language between the relevant provisions of the Rules of Civil Procedure and the Family Law Rules, I find that the reasoning in Forrest v. Lacroix, is equally applicable to the Family Law Rules.
[35] Rules 60.02, 60.05, and 60.11(1) of the Rules of Civil Procedure provide:
60.02(1) In addition to any other method of enforcement provided by law, an order for the payment or recovery of money may be enforced by,
(a) a writ of seizure and sale…
60.05 An order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be enforced against the person refusing or neglecting to obey the order by a contempt order under rule 60.11.
60.11(1) A contempt order to enforce an order requiring a person to do an act, other than the payment of money, or to abstain from doing an act, may be obtained only on motion to a judge in the proceeding in which the order to be enforced was made.
[36] Rules 2(1), 26(2), (3) and (4), and 31(1) of the Family Law Rules provide, in part, as follows:
2(1) “payment order” means a temporary or final order, but not a provisional order, requiring a person to pay money to another person, including,
(b) a support order,
(i) the costs and disbursements in a case;
26(2) An order that has not been obeyed may, in addition to any other method of enforcement provided by law, be enforced as provided by subrules (3) and (4).
(3) A payment order may be enforced by,
(d) seizure and sale …;
(f) a default hearing (rule 30), if the order is a support order; [^3]
(4) An order other than a payment order may be enforced by,
(b) a contempt order (rule 31);
31(1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.
[37] In Forrest v. Lacroix, Morden J.A. considered whether the language “any other method of enforcement provided by law” in rule 60.02(1) of the Rules of Civil Procedure (the same language appears in rule 26(2) of the Family Law Rules) could include a motion for contempt pursuant to the inherent jurisdiction of a Superior Court. He concluded that it could not. He said at para. 23:
… the only sensible interpretation of rule 60.11 is that it is intended to occupy the field in proceedings under the Rules of Civil Procedure relating to the enforcement of court orders which require an act to be done, with the result that there is no power to commit for non-payment of a money judgment … Accordingly, an “other method of enforcement” (rule 60.02(1)), does not include steps taken under the inherent jurisdiction of the court.
[38] Although the language of rules 26(4) and 31(1) of the Family Law Rules is not precisely the same, in that they do not refer to orders that require an act to be done, I see no reason not to apply the reasoning from Forrest v. Lacroix. Accordingly, I would hold that these rules are “intended to occupy the field” of contempt proceedings under the Family Law Rules, and that they prohibit contempt proceedings under the Family Law Rules.
[39] I conclude that it was not open to the motions judge to enforce paragraphs 1(b), (c), (e), and (f) of the June 13, 2001 order by issuing an order of committal. However, I am not persuaded that she did.
[40] Although I agree that the June 13, 2001 order appears to require that Mr. Murano be imprisoned for failing to comply with payment orders, on July 4, 2001, the motions judge noted, in her oral reasons, that the parties had acknowledged that payment orders cannot be enforced through contempt proceedings. Her reasons for issuing a warrant of committal clearly focus on Mr. Murano’s default in complying with the production orders. I am satisfied that the motions judge did not issue the warrant of committal based on default under the payment orders.
ii) Did the motions judge err by failing to conduct a proper hearing concerning the issue of contempt?
iii) Did the motions judge err by delegating her judicial function of supervising the production of documents to the respondent?
[41] I will deal with the second and third grounds of appeal together as they are interrelated.
[42] Mr. Murano submits that the March 7, 2001 order required extensive production of documents but provided no mechanism for addressing the relevance of the productions or supervising compliance. He claims that he produced a large number of documents but that there are others that are no longer in his possession and control, and that subsequent courts simply relied on “averments” of the respondent in determining whether he was in default.
[43] Mr. Murano also contends that he had substantially complied with the June 13, 2001 order as of July 4, 2001, and that with the assistance of his accountant, he would have been in position to fully comply, to the extent that he is able, within one week. He claims that the July 4, 2001 motions judge erred by accepting the June 13, 2001 finding of contempt and insisting on full compliance with that order, without holding a proper hearing to inquire into the cause of his default.
[44] I disagree. The June 13, 2001 order was not appealed. It was not for the motions judge on July 4, 2001 to reopen the finding of contempt or otherwise go behind the June 13th order. Doing so would have been an impermissible collateral attack: Manis v. Manis, (2001), 2001 8571 (ON CA), 148 O.A.C. 127 (C.A.); Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594, and R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333.
[45] That said, the July 4, 2001 motions judge undoubtedly had a discretion to relieve Mr. Murano from the consequences of his earlier default based on his subsequent efforts at compliance and any difficulties he may have encountered. Accordingly, I take Mr. Murano’s submission to be that the motions judge failed to exercise her discretion by insisting on full compliance with the June 13, 2001 order without considering whether Mr. Murano was unable to fully comply.
[46] I reject this submission as well as Mr. Murano’s claim that the July 4, 2001 motions judge simply relied on averments of the respondent in making her decision. Read as a whole, the motions judge’s reasons reflect a finding that, in the face of a pattern of flagrant non-compliance, Mr. Murano’s latest efforts amounted to “too little, too late”. I see no error in the manner in which the motions judge exercised her discretion, and I find that the record amply supports her conclusion.
[47] In making her decision to issue a warrant of committal, the motions judge stated that, as of July 4, 2002, Mr. Murano had not filed a financial statement as required and that there was a “very substantial chunk of information” to come from his accountant. She also referred to the “previous history” and noted that, originally, Mr. Murano did not disclose his true capacity with 1324657 Ontario Ltd., he did not disclose corporate books and records, and he gave false information concerning the Division Street property. Reviewing the record as a whole, it is clear that, before mid-June 2001, Mr. Murano had made only a token effort at compliance with the production orders, and that there were flagrant omissions, and patent falsehoods in the material that he had filed. Moreover, the updated evidence filed as of July 4, 2001 demonstrated that much remained to be done. [^4]
[48] For example, although Mr. Murano claimed that the Bank of Montreal judgment proceeds were used to pay debts, prior to retaining his accountant and aside from identifying certain judgment creditors, Mr. Murano had made no legitimate effort to explain why the monies were paid to particular recipients. There is no explanation why Mr. Murano could not have provided at least part of this information sooner.
[49] Until Ms. Murano uncovered the transfer and mortgage of the Division Street property, Mr. Murano failed to disclose his involvement in that transaction or his position as president of 1324657 Ontario Ltd. Mr. Murano’s June 29, 2001 affidavit sheds no light on why he personally guaranteed the mortgage given by 1324657 Ontario Limited on the Division Street property, when he claims that that property was being acquired for a third party.
[50] Moreover, Mr. Murano’s statements, in his June 29, 2001 affidavit, that he participates in the family business in a managerial capacity and that the operating account was used to pay his personal expenses are, at best, vague. The April 7, 2001 order specifically required that Mr. Murano disclose details relating to the nature of his employment and rate of remuneration during the past five years. Again, there is no explanation why Mr. Murano could not have provided at least some more detailed information on or before July 4, 2001.
[51] Prior to June 29, 2001, Mr. Murano failed to disclose that he received the proceeds of a settlement in the spring of 1991, and that he used that money for payment of debts in the face of a non-dissipation order.
[52] Accordingly, as of July 4, 2001, Mr. Murano had not delivered a complete financial statement, he had provided minimal information concerning the nature of his employment and level of remuneration during the last five years, and he had provided little meaningful information concerning the distribution of the Bank of Montreal judgment proceeds. Although it may be true that Mr. Murano’s decision to retain his accountant to assist in explaining the distribution of the Bank of Montreal judgment proceeds reflected a serious effort at compliance, it is apparent that it was the first such effort that Mr. Murano had made. Moreover, other than a general statement in the unsworn letter from his accountant, Mr. Murano provided no details of the steps that he took personally to facilitate preparation of his accountant’s report in time for July 4, 2001.
[53] I reiterate that Mr. Murano’s efforts to comply with the June 13, 2001 ordered amounted to “too little, too late”. Moreover, this conclusion flows almost entirely from Mr. Murano’s own material, as opposed to any “averments” of the respondent. Accordingly, I would not give effect to these grounds of appeal.
iv) Did the motions judge err by striking out Mr. Murano’s pleadings?
[54] Mr. Murano contends that when the motions judge struck Mr. Murano’s pleadings she exceeded her jurisdiction by imposing a sanction for contempt that is not provided for in Rule 31 of the Family Law Rules. He also claims that the motions judge erred by disregarding the best interests of the child in excluding him from the proceedings.
[55] Again, I disagree. At least three provisions in the Family Law Rules, apart from rule 31, allow the court to strike pleadings for failing to comply with the rules or a court order. Rule 13(17) permits the court to dismiss a party’s case or strike out any document filed by a party if the party fails to obey an order to file a financial statement or fails to provide information as required in that rule. Rule 14(23) permits the court to dismiss a party’s case or strike out any document filed by a party if the party fails to obey an order made on a motion. Finally, rule 19(10) provides that the court may dismiss a party’s case if the party fails to follow the production requirements set out in that rule or fails to obey an order made under that rule.
[56] The motions judge clearly alluded to a motion to strike pleadings. Although the appeal record does not disclose which rule the motions judge relied on to strike the pleadings, any of the rules I have referred to would have given her jurisdiction to do so.
[57] As for Mr. Murano’s submission that the motions judge disregarded the best interests of the child, I agree that it is generally preferable to avoid the sanction of striking pleadings where children’s interests are involved. However, in this case, the record amply supports the motions judge’s decision. Mr. Murano has a remedy if he wishes to be re-admitted to the proceeding. The motions judge left it open to him “to make submissions on the pleadings remaining before the court” if he complied fully with the orders.
[58] I would not give effect to this ground of appeal.
Disposition
[59] I would dismiss the appeal with costs to the respondent fixed at $4750.
Released: September 25, 2002 “JIL”
“Janet Simmons J.A.”
“I agree John Laskin J.A.”
“I agree J.C. MacPherson J.A.”
[^1]: It is not clear to what affidavit this reference or the reference in line 5 of the endorsement refer. [^2]: As other portions of this transcript contain obvious errors in transcription, it appears unlikely that the motions judge was given the opportunity to edit these remarks. [^3]: I note that there is a separate power under the Family Law Rules to order imprisonment in the event of default of payment of a support order in limited circumstances. However, there was no suggestion in this court that the respondent relied on that provision when she made her request for relief. [^4]: The appeal record contains material delivered subsequent to July 4, 2001 in purported compliance with the production orders. However, it is not for this court to make an original determination of whether Mr. Murano has now complied with those orders.