DATE: 20051027
DOCKET: C43252
COURT OF APPEAL FOR ONTARIO
RE: CHRISTINE MARIE HAUNERT-FAGA (Respondent) – and – STEPHEN LEONARD GLEN FAGA (Appellant)
BEFORE: DOHERTY, BORINS and LaFORME JJ.A.
COUNSEL: Enzo Di Iorio for the appellant
Jaret N. Moldaver for the respondent
HEARD: October 21, 2005
On appeal from the Order of Justice C. Perkins of the Superior Court of Justice dated February 16, 2005.
E N D O R S E M E N T
[1] In the context of divorce proceedings, the respondent husband had his answer struck out following a motion under R. 14(23) of the Family Law Rules. The motion to strike his answer was brought by the applicant wife on the ground that the husband refused or failed to obey prior court orders that he provide her with funds and, in the event of default by him, allow her access to funds from joint accounts.
[2] The husband has appealed on the ground that the motion judge erred in the exercise of his discretion in striking out his answer.
[3] When the motion was heard, the motion judge relied on three separate orders that required the husband to pay the aggregate amount of $54,500. The motion judge found that the husband was in breach of each of the three orders. In consequence of the husband's breach, it was necessary for the wife to withdraw funds from a mutual fund jointly owned by her and her husband.
[4] The husband argues that her ability to withdraw the funds from the mutual fund, in effect, constituted compliance with the orders by the husband. Thus, he argues, the motion judge was in error in striking out his answer.
[5] It is plain that in each of the orders considered by the motion judge, the husband was required to pay the wife the specific amount of funds stated in each. It is equally plain that in each instance, and continuing up to the hearing of this appeal, the husband has failed or refused to comply with each order. His failure or refusal to comply with these court orders is not rectified by the fact that the court saw fit to provide the wife with an alternative source of funds. There is no doubt that the alternative source of funds to the wife was made available to her in the event the husband failed to comply with the orders to pay. He in fact failed to comply with each of the orders on which the motion to strike his answer was based.
[6] We cannot find any error committed by the motion judge in the proper exercise of his judicial discretion to strike the husband's answer. The appeal is therefore dismissed, subject to our comments below.
[7] The husband's answer included issues in relation to custody and access of three children. Generally, it is preferable to avoid the sanction of striking pleadings where children's interests are involved. The motion judge made no reference to the custody and access issues in his endorsement. We are advised, however, that the motion judge both when he issued his order, and in connection with subsequent motions brought by the husband, clearly intended that his order to strike the husband's answer was to include all issues. We understand also that the Office of the Children's Lawyer has agreed to, and currently does, represent the children's interests in these proceedings.
[8] Given the above, we would order that, if the husband fully satisfies each of the orders before the motion judge by October 28th, 2005, his answer in connection with custody and access issues only shall be revived. His failure to completely comply with each of the orders by October 28th will result in his answer, in its entirety, remaining struck out in accordance with the order of the motion judge. Except for this order, the appeal is otherwise dismissed.
[9] There will be costs of this appeal to the wife in the all-inclusive amount of $5,000.
“Doherty J.A.”
“S. Borins J.A.”
“H.S. LaForme J.A.”