COURT OF APPEAL FOR ONTARIO
CITATION: Roberts v. Roberts, 2015 ONCA 450
DATE: 20150619
DOCKET: C59616
Feldman, Hourigan and Benotto JJ.A.
BETWEEN
Mable Frances Roberts
Applicant (Respondent)
and
Orin Lennox Roberts, 2052544 Ontario Inc., Romek Investments Inc., Marsdale Manor Limited, 2287599 Ontario Inc.1771726 Ontario Limited, 1701875 Ontario Inc., 2229428 Ontario Inc. and PJR Group Inc.
Respondents (Appellant)
Richard R. Housen, for the appellant
Brian Sherman, for the respondent
Heard: June 4, 2015
On appeal from the order of Justice Mary E. Vallee of the Superior Court of Justice, dated October 16, 2014.
Benotto J.A.:
[1] This appeal involves the importance of disclosure in a family law proceeding. The appellant’s pleadings were struck by the motion judge for failure to comply with orders requiring him to disclose financial information. He seeks to have the order overturned.
Facts
[2] The parties were married in 2001 and separated in 2012. Together they owned and operated five nursing homes. They have no children.
[3] The respondent commenced an application for divorce and equalization in January 2013. She alleged in part that the appellant was using his companies to hide funds. The appellant in turn filed an Answer claiming, among other things, a deduction for property owned at the date of marriage, an equitable interest in property owned by the respondent and spousal support for himself. It is clear from the pleadings that the claims and cross-claims would require extensive documentary disclosure.
[4] On April 22, 2013, a few weeks after the exchange of pleadings, the respondent brought a motion for disclosure. Justice McGee ordered that the parties exchange requests for disclosure within 20 days and that the requested disclosure be produced within 60 days thereafter. The parties consented to this order.
[5] The order was not complied with. The respondent brought another motion, this one heard by Justice Mullins. She ordered, again on consent, that the timeline for disclosure be amended, that the parties exchange requests for disclosure by February 28, 2014 and that the requested disclosure be produced no later than March 31, 2014.
[6] The respondent served the request for disclosure as required. It was not complied with. Several requested items were not produced. The respondent brought a motion to strike the appellant’s pleadings. This motion came before Justice Howden on June 11, 2014. Instead of striking the pleading, he granted the appellant a further extension to July 20, 2014. The order provided that failure by the appellant to answer all requests for disclosure by this deadline would entitle the respondent to renew her motion to strike the appellant’s pleading.
[7] The appellant did not answer all the requests for disclosure. The respondent renewed her motion to strike the pleadings.
[8] On September 24, 2014, the respondent moved before Justice Vallee to strike out the appellant’s pleadings for “persistent and ongoing failure to provide court ordered disclosure.” The order was granted.
Reasons of the Motion Judge
[9] The motion judge reviewed the history, the court orders and the production provided by the appellant. She noted:
On June 11, 2014, the [appellant] assured the court that he would produce the outstanding items by July 20, 2014. He was granted this extension. A further two months have passed and the various items remain outstanding. A further order granting another extension will likely have the same result and is not appropriate in the circumstances.
[10] The respondent was granted leave to file a motion for an uncontested trial.
Analysis
[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
[12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.
[13] Financial disclosure is automatic. It should not require court orders – let alone three - to obtain production.
[14] Rule 1(8) of the Family Rules provides:
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. O. Reg. 322/13, s. 1.
[15] The power to strike out the pleadings is to be used sparingly and only in exceptional cases. This is such a case. The appellant’s conduct in ignoring court orders and failing to follow the basic principles of family law litigation put him in the exceptional category of cases where the judge’s discretion to strike his pleadings was reasonably exercised.
[16] There are no children and thus no children’s issues here.
[17] I would dismiss the appeal with costs fixed at $10,000.00 inclusive of disbursements and HST.
Released: “K.F.” June 19, 2015
“Mary Lou Benotto J.A.”
“I agree K. Feldman J.A.”
“I agree C.W. Hourigan J.A.”