COURT OF APPEAL FOR ONTARIO
CITATION: Manchanda v. Thethi, 2016 ONCA 909
DATE: 20161130
DOCKET: C62303
BEFORE: Gillese, Benotto and Roberts JJ.A.
BETWEEN
Jastinder Manchanda
Applicant
(Respondent on Appeal)
and
Sukhvir Thethi
Respondent
(Appellant)
COUNSEL:
Richard Parker, for the appellant
Evelyn Rayson and Michael Weisbrot, for the respondent
HEARD: November 22, 2016
On appeal from the order of Justice F. Myers of the Superior Court of Justice, dated June 9, 2016.
ENDORSEMENT
[1] The appellant appeals the order of the motion judge striking his pleadings for failure to comply with court orders and allowing the respondent to amend her application.
[2] The parties separated in 2013 after a ten-year marriage. They have no children. Shortly after separating, they embarked upon high conflict matrimonial litigation. There have been countless court attendances resulting in court orders from at least ten different judges.
[3] Three court orders specifically required the appellant to deposit rental income, which he collects from jointly owned property, into a specified joint account: the order of Jarvis J., dated December 2, 2013; the order of Frank J., dated November 26, 2014; and the order of Horkins J., dated June 4, 2015. It is not in dispute that the appellant breached these orders.
[4] There were also orders for financial disclosure. In October 2013, the parties agreed to a consent order for disclosure. In March 2015, the respondent sent the appellant a request for information consisting of 374 items. In response, the appellant sent an affidavit with documents. He claimed that this provided disclosure, while the respondent said some issues had not been addressed. Horkins J. went through the requests and affidavit of documents and made detailed orders for the parties to provide various documents. The appellant provided an affidavit, sworn April 15, 2016, claiming that the attached documents constituted compliance with the order of Horkins J.
[5] The respondent disagreed and moved to strike his pleadings under r. 1(8) of the Family Law Rules, O. Reg. 114/99. The respondent also sought leave to amend her application to include a claim for constructive trust on the matrimonial home owned by the appellant.
[6] The motion judge struck the appellant’s pleadings and allowed the respondent to amend her application.
[7] The appellant submits that the motion judge erred in using the extraordinary remedy of striking his pleadings. He submits that such draconian measures should only be used in limited and exceptional circumstances, and when no other remedy would suffice: Chiaramonte v. Chiaramonte, 2013 ONCA 641, 36 R.F.L. (7th) 11; Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33. He argues that his conduct was insufficiently egregious to justify striking his pleadings.
[8] We do not agree, for two reasons.
[9] First, the circumstances were exceptional and egregious. In Kovachis v. Kovachis, 2013 ONCA 663, 36 R.F.L. (7th) 1, this court allowed an appeal from an order striking the pleadings of a non-compliant party because the motion judge had failed to: (i) consider the substantial disclosure already made; (ii) itemize what disclosure the party had failed to provide; (iii) make a finding of willful disobedience of the order; and (iv) consider proportionality. Here, the motion judge did just that. In detailed reasons he itemized the disclosure already made and what remained outstanding. He found that the breach was willful. He considered proportionality in the light of disclosure already made, saying that he was less moved by the quantity than by the quality of the disclosure. The appellant had not disclosed basic documents such as his income tax returns, financial statements, bank account statements, credit card statements, and investment account statements.
[10] This was not a situation of overreaching by the respondent. The breaches and failure to disclose occurred in the context of extensive case management. Horkins J., in particular, had carefully itemized the required disclosure. The appellant did not comply.
[11] Although the respondent had also made incomplete disclosure in relation to $377,000 removed from her bank account, the motion judge found that this was in the context of otherwise full disclosure.
[12] In Chiaramonte, an appeal was allowed wherethe motion judge had mischaracterized the disclosure by the party whose pleadings were struck. Here, however, the motion judge’s findings were supported on the record before him. In Purcaru, this court upheld a trial judge’s ruling which struck out pleadings for breaches and non-disclosure.
[13] Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful 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, 65 R.F.L. (7th) 6, at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. 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.
[14] The motion judge also allowed the respondent to amend her application to include a claim for constructive trust in the matrimonial home registered in the appellant’s name. The respondent’s draft pleading set out the facts of contribution supporting this claim. The motion judge had no evidence of prejudice to the appellant. There is no basis to interfere with the motion judge’s exercise of discretion in this regard.
[15] The appeal is dismissed with costs fixed at $13,000, inclusive of disbursements and HST.
“E.E. Gillese J.A.”
“M.L. Benotto J.A.”
“L.B. Roberts J.A.”