Court File and Parties

Ontario Court of Justice

Date: 2019-04-16

Court File No.: Halton 281/16

Between:

Lalah Jallali Applicant

— And —

Randy Amiri Respondent

Before: Justice Susan Sullivan

Heard on: March 25, 2019

Reasons for Ruling released on: April 16, 2019

Counsel:

• Logan Rathbone, counsel for the applicant
• Mark Trenholme, counsel for the respondent

General Introduction

[1] This is the court's ruling with respect to a motion brought by the Applicant, Lalah Jallali in which she requests, "an order striking out the Answer and dismissing all claims of the Respondent, Randy Eric Amiri, pleaded therein."

[2] In support of this motion, the Applicant filed an affidavit dated February 19, 2019.

[3] The Respondent did not serve and file responding materials; on February 5, 2019 he was ordered to do so by March 15, 2019.

[4] The Respondent was not present when this motion was argued on March 25, 2019. Mr. Trenholme, counsel for the Respondent, was in attendance. He advised that he has no instructions regarding the Applicant's motion and his efforts to obtain instructions, in general, from his client have been futile.

Pleadings

[5] The subject children of this proceeding are:

• Arian Amiri born […], 2005;
• Arina Amiri born […], 2010; and
• Ariya Amiri born […], 2014.

[6] The Applicant brought an Application which was issued and filed with the court on June 17, 2016.

[7] In her Application dated April 28, 2016, the Applicant requests an order that:

• She shall have sole custody of the children;
• A restraining order shall be made regarding the Respondent;
• She shall be permitted to apply for or renew Canadian passports for the children without requiring the signature of the Respondent;
• She shall be permitted to travel with the children outside of Canada without requiring a notarized travel letter from the Respondent;
• Costs; and
• Such further and other relief as the court deems just.

[8] On December 28, 2017 the Applicant amended her Application to include the following claims:

• The Respondent shall pay child support to the Applicant for the children;
• The parties shall share in the special and extraordinary expenses of the children, in accordance with their respective income ratios; and
• The Respondent shall pay spousal support to the Applicant in accordance with the Spousal Support Advisory Guidelines (SSAG).

[9] In his Answer dated February 25, 2017 and filed with the court June 28, 2017 the Respondent requests an order that:

• He shall have sole custody of the children;
• He shall be entitled to obtain government issued identification for the children without the approval or authorization of the Applicant;
• He shall be permitted to travel with the children to the United States without notice to or the approval or authorization of the Applicant. He shall provide the Applicant thirty (30) days' notice for any travel outside of Canada to a destination not part of the United States;
• The Applicant shall not remove the children from Canada, or Ontario, or beyond 150 kilometers of the borders of the Region of Peel without first obtaining the written notarized consent of the Respondent;
• He and the Applicant shall have the same rights to information with respect to the children as specified in his Answer;
• Neither parent shall be permitted to apply to change the name of the children;
• The Applicant shall have access to the children as specified in his Answer;
• In the alternative, he shall have access to the children as specified in his Answer; and
• Such further or other relief as this court deems just.

Facts

[10] The children reside with the Applicant.

[11] The children have not had access with the Respondent since separation, which was in the Summer of 2015.

[12] Kelly Schweitzer, a clinician with the Office of the Children's Lawyer, completed an investigation and report ("the OCL report"); it is dated May 28, 2018. Neither party has filed a Dispute. A recommendation therein is that the Respondent have therapeutic access with Arian and Arina.

[13] The Applicant's unchallenged evidence is that the Respondent has not taken any steps to arrange for the therapeutic access as recommended by the Office of the Children's Lawyer.

[14] At no time in this proceeding has the Respondent filed a Financial Statement. He has not provided any documentation regarding his financial situation.

[15] It appears that the Respondent has left the jurisdiction and likely is in Denmark.

[16] The Applicant states in her January 15, 2019 affidavit, at paragraph 19, "On or about October 2018, I received information to the effect that the Respondent may be leaving Canada. My solicitor advised and I verily believe that the Respondent tried to directly contact him to advise him of same. Mr. Rathbone advises and I verily do believe that he told the Respondent he could not discuss this matter with him directly and to contact his solicitor regarding the matter."

[17] The Applicant further states in her February 19, 2019 affidavit, at paragraph 16, "I am currently unaware of the Respondent's whereabouts. I understand that the Respondent has recently contacted my sister-in-law and has advised that he was in Denmark. I spoke with my sister-in-law and she confirmed this to be true. I have no further details as to the Respondent's present whereabouts."

[18] On October 10, 2018 Mr. Trenholme sent Mr. Rathbone a Notice of Withdrawal, signed by the Respondent, and dated October 10, 2018. Therein, the Respondent notes that his claims regarding the following issues are withdrawn:

• custody;
• access;
• non-removal of the children from Ontario; and
• obtaining passports for the children.

[19] The Notice of Withdrawal was not filed with the Court.

[20] On March 25, 2019 I asked Mr. Trenholme why the Notice of Withdrawal was not filed with the court. He advised that out of an abundance of caution, he wanted to confirm his client's instructions before doing so, however, despite efforts, he has not been able to communicate with the Respondent.

Relevant Court Orders and Compliance

[21] On July 5, 2017 Justice Kurz made an order, on consent, that the Respondent shall serve and file a Financial Statement including all attachments required by Rule 13 by August 31, 2017.

[22] On November 29, 2017 Justice Wolder ordered that the time limit for complying with the July 5, 2017 order was extended to December 29, 2017. Justice Wolder specified that this included that the Respondent shall serve and file his updated sworn financial statement and supporting Notices of Assessment from Canada Revenue Agency.

[23] On February 6, 2018 Justice Wolder noted, "The Respondent is required to serve and file his updated sworn Financial Statement together with all Notices of Assessments for the past 3 years available to him. He will not have to produce or file a Notice of Assessment from any year he did not earn income in Canada." Justice Wolder also endorsed that the issue of costs for this day, thrown away is reserved, to be addressed on February 15, 2018.

[24] The word "updated" was not required in Justice Wolder's November 29, 2017 and February 6, 2018 endorsements as the Respondent had not filed a Financial Statement prior to these attendances.

[25] On February 15, 2018 Justice Wolder noted that the Respondent has failed to comply with previous orders for financial disclosure. He also recorded that the Respondent's lawyer advised that the Respondent is now employed as a salesperson at Mr. Big and Tall and he earns minimum wage. The Respondent did not consent to a temporary order regarding child support on this date, so plans were put in place for this to be addressed by way of motion. Justice Wolder also ordered that costs for this attendance, thrown away, are awarded to the Applicant, together with costs reserved on the last day; he fixed costs for both attendances in the sum of $500 + GST ($65.00), to be enforced in the same manner as if it were an order for child support and to be paid forthwith.

[26] The Applicant's motion regarding child support was heard on March 7, 2018. On this date, Justice Wolder noted that the Respondent had not replied to the motion and went on to make an order that on a temporary and without prejudice basis, commencing March 15, 2018 and on the 15th day of each month thereafter, the Respondent shall pay to the Applicant child support for the three (3) children in the amount of $604.23 per month, based on an annual imputed income of $29,120. Justice Wolder further ordered that both parties shall share in the s. 7 special and extraordinary expenses for the children on a 50/50 basis. Last, he ordered that the Respondent shall forthwith pay to the Applicant her costs of this motion, fixed in the sum of $791.00 and to be enforced in the same manner as if it were an order for child support.

[27] On July 4, 2018 the presiding judge ordered that, in part, that the parties shall complete in a timely manner the intake process and fully cooperate with reintegration counselling. This order was in keeping with the Office of the Children's Lawyer's recommendation, as contained in the May 28, 2018 report.

[28] On November 15, 2018, the Respondent was not present at court and had not filed a Brief. His lawyer was also not present. Efforts to determine counsel's whereabouts and whether he intended on attending court were unsuccessful. Given this, and receipt of the Notice of Withdrawal, on this date counsel for the Applicant requested that the court (i) set a date for an uncontested hearing in relation to the four issues noted in the Respondent's Notice of Withdrawal; (ii) grant leave to allow the Applicant to bring a motion to strike the Respondent's pleadings; and (iii) costs for this appearance.

[29] On November 15, 2018 I adjourned the matter to February 5, 2019. I further ordered:

• If the Respondent intends to file his signed Notice of Withdrawal, he shall do so by December 7, 2018;
• If the Respondent files his Notice of Withdrawal or does not attend the Conference on February 5, 2019 the matter shall proceeding as an uncontested hearing on the return date on the four issues noted in the Notice of Withdrawal;
• If the Respondent does not intend to withdraw from the proceeding on the issues listed in the Notice of Withdrawal, he shall serve and file a Settlement Conference Brief by January 15, 2019, serve and file a Confirmation as per the Rules, and attend the Conference on February 5, 2019. If he has done so, a Conference shall occur on this date; and
• Costs shall be dealt with at the next appearance.

[30] On February 5, 2019 the Respondent and his counsel were again not present. The Respondent did not file a Settlement Conference Brief. The Notice of Withdrawal was not filed. I indicated that I was prepared to proceed on the issues noted in the Respondent's Notice of Withdrawal in chambers as the Applicant had filed a Form 23C Affidavit for uncontested trial. With respect to the other issues, I provided the Respondent with a further opportunity to provide financial disclosure. I also provided the Applicant leave to bring a motion to strike the Respondent's pleadings and the Respondent a chance to defend this request. Specifically, on this date I ordered:

• The Respondent shall serve and file a sworn financial statement with all attachments required by Rule 13 by March 15, 2019;
• The Applicant shall serve and file her Notice of Motion and affidavit (regarding motion to strike) by March 1, 2019;
• The Respondent shall serve and file his responding materials by March 15, 2019;
• The Applicant shall serve and file any reply materials by March 22, 2019;
• This matter shall be adjourned to March 25, 2019 at 10:30 a.m. in Court Room #3 for the hearing of the Applicant's motion to strike the Respondent's pleadings;
• Farsi interpreter is required on the return date; and
• Costs for the November 15, 2018 appearance and today's appearance shall be adjourned to March 25, 2019.

[31] By March 25, 2019 I had not dealt with the issues noted in the Respondent's Notice of Withdrawal in chambers. On this date, I decided not to do so until I ruled on the Applicant's motion to strike the Respondent's pleadings.

[32] As noted above, on March 25, 2019 Mr. Trenholme was in attendance at court. The Respondent was not. The Respondent did not file any responding materials to those of the Applicant swore in support of his motion. Mr. Trenholme advised that he has no instructions regarding the Applicant's motion.

The Law and Governing Principles

[33] The Family Law Rules detail the consequences that may follow upon a party's failure to obey a court order in a case.

[34] Rule 1(8) sets out that 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 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 a 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 and any other step in the case; and

(g) on motion, a contempt order.

[35] Rule 1(8.1) provides that if a person fails to follow the rules, the court may make an order under Rule 1(8) other than a contempt order under clause (8)(g).

[36] Rule 1(8.4) sets out the following as the consequences of striking documents, unless the court orders otherwise:

(a) The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order);

(b) The party is not entitled to participate in the case in any way;

(c) The court may deal with the case in the party's absence; and

(d) A date may be set for an uncontested trial of the case.

[37] Simply put, a party whose pleadings have been struck is no longer able to participate in the case. See: Caldwell v. Caldwell, [2006] O.J. No. 1469 (Ont. C.A.).

[38] Rule 2(2) of the Family Law Rules is also relevant to this motion; this rule provides that the primary objective of the rules is to enable the court to deal with cases justly. Rule 2(3) is also important to the issue to be decided and states that dealing with a case justly includes:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[39] The Child Support Guidelines is also applicable to this motion as it includes provisions regarding the consequences for non-compliance with a court order. Section 24 of the Guidelines states that if a party does not comply with an order to provide documents under section 22 of the Child Support Guidelines, the court can strike out that party's pleadings, proceed to a hearing, make an adverse inference and impute income.

[40] In 2015, Rule 13 of the Family Law Rules was amended to emphasize a party's obligation to provide financial disclosure. In part, it outlines the particular financial disclosure to be produced in specified circumstances; when and how initial and updating financial information is to be provided; the rights of a party if s/he believes that the financial disclosure provided is insufficient; the responsibilities of the other party if s/he is asked for more information; the duty of a party to address situations where incorrect, incomplete or out of date documents have been provided; and the duty to address failure to serve documents required to be provided.

[41] In Roberts v. Roberts, [2015] ONCA 450 (Ont. C.A.), Benotto J.A. wrote with respect to financial disclosure:

[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.

[42] Clearly, the ongoing provision of financial disclosure is a fundamental, important obligation of parties involved in family law matters. If one chooses to approach their responsibilities in a cavalier, dismissive manner, they ought to be prepared for the consequences that may flow from their decisions.

[43] Notwithstanding the seriousness of one's breach of the strict requirements to produce financial documents, when determining the appropriate remedy for such behaviour, the court has to be mindful of the many decisions the Ontario Court of Appeal which have made it clear that the power to strike out a party's pleadings should be used sparingly and only in exceptional circumstances.

[44] Pleadings in a family law proceeding should only be struck in egregious and exceptional circumstances which includes wilful non-compliance with a court order to provide financial disclosure. See: Manchanda v. Thethi, [2016] ONCA 909 (Ont. C.A.).

[45] In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice. See: Purcaru v. Purcaru, [2010] ONCA 92 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:

[49] The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.

[46] Where custody and access interests are involved, the court should avoid the sanction or use utmost caution in striking pleadings because trial court needs participation of both parties and information that each can provide about best interests. A full evidentiary record, including the participation of both parties, is generally required to make a custody decision in the best interests of the children. See: King v. Mongrain, 2009 ONCA 486, [2009] O.J. No. 2466, (Ont. C.A.), cited with approval in D.D. v. H.D., [2015] O.J. No. 2959 (Ont. C.A.).

[47] Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman, 28 R.F.L. (5th) 447 (Ont. C.A.)

[48] In Mullin v. Sherlock, [2018] ONCA 1063 (Ont. C.A.) the court confirmed the decision-making framework that is to be applied to motions to strike:

[44] First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.

[45] Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:

• the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
• the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
• the extensiveness of existing disclosure;
• the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
• any other relevant factors.

[46] Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be considered to be automatic. Fully compliant disclosure is the expectation, not the exception.

[47] If the judge decides to strike, as in the case under appeal, Rule 1(8.4) becomes applicable. As mentioned, this subsection provides that certain consequences apply unless a court orders otherwise. Accordingly, a party is not entitled to participate in a case in any way unless the court orders otherwise. This provision gives the judge the ability to frame the procedural consequences to a party in default. In making this determination, consideration should be given to whether the consequence is responsive to the breach and whether it achieves a just outcome.

[48] If the judge decides to strike, Rule 1(8)(c) does not refer to striking "pleadings". Instead, it specifically distinguishes amongst striking out an application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party. Rule 1(8.4) addresses the consequences if an order is made striking an application, answer, motion to change or response to a motion to change. Ideally, when making an order under this subsection, the judge should specify what is being struck.

[49] The decisions to strike a document and to determine the parameters of trial participation are discretionary in nature, and as stated by Lang J.A. in Purcaru, at para. 50, are "entitled to deference on appeal when exercised on proper principles. The exercise of discretion will be upheld where the motion or trial judge fashions a remedy that is appropriate for the conduct at issue.

Analysis

Following the framework outlined in Mullin v. Sherlock, I have made the following findings.

[50] The Respondent has been wilfully non-compliant with the financial disclosure orders made in this case. Disclosure orders were made on July 5, 2017; November 29, 2017; February 6, 2018; and February 5, 2019. The Respondent has not filed a Financial Statement or otherwise provide any sworn evidence regarding his financial circumstances at any point in this proceeding.

[51] The Respondent's non-compliance with the disclosure orders made has hindered the resolution of the issues of child support, spousal support, and contribution to s. 7 expenses.

[52] Without disclosure, it is impossible for the court to ensure that the amount of child support ordered to be paid is the right amount in the circumstances. Child support is the right of the children, and the court has an obligation to them to make every effort to ensure that they receive the quantum of financial support from their payor parent that they are entitled to. This responsibility is stymied when disclosure is not provided.

[53] The same principle applies to the court's inability to determine the appropriate amount of spousal support to be paid, should entitlement be established.

[54] The Respondent's financial circumstances in this case are uncomplicated. The Respondent was last reported to be a sales clerk at a retail store. There is also evidence that prior to this, he owned a Pizza franchise in Smith's Falls. The Respondent was given many opportunities over an extended period of time – 2.5 years – to deliver the financial information, but he chose not to.

[55] There is no evidence of any efforts made by the Respondent to provide financial disclosure, except for the one occasion his lawyer said he was working at Mr. Big and Tall, making minimum wage.

[56] The Respondent has provided no explanations as to why the required financial information has not been provided to date.

[57] Other relevant factors I have considered in assessing the most appropriate remedy in this case are as follows.

[58] The Respondent did not follow through with the July 4, 2018 order regarding the arrangement of therapeutic access, which was a recommendation in the OCL report to address the fact that he has not seen his children since 2015. This is indicative of a lack of interest to engage in the litigation process.

[59] The Respondent has left the jurisdiction and is likely in Denmark.

[60] The Respondent did not attend court on November 15, 2018; February 5, 2019; and March 25, 2019.

[61] The Respondent has not kept in contact with his lawyer to provide him with instructions, thereby interfering with the resolution of this matter.

[62] The Respondent did not file a Settlement Conference Brief for the February 5, 2019 attendance.

[63] The Respondent did not serve and file reply materials to the Applicant's motion to strike his pleadings.

[64] The Respondent signed a Notice of Withdrawal on October 10, 2018 wherein he withdrew his Answer dated February 25, 2017 against the Applicant regarding custody; access to the children; non-removal of the children from Ontario; and obtaining passports for the children. The signing of this document coincided with the Respondent likely leaving the jurisdiction; his lack of communication with his lawyer; and his lack of attendance at court.

[65] I am mindful that striking pleadings is a power that should be used sparingly.

[66] I understand that in family law proceedings, pleadings should only be struck in egregious and exceptional circumstances.

[67] I am aware that I could strike the Respondent's pleadings regarding financial issues and allow for his involvement in the remaining issues.

[68] Last, I am cognizant of the fact that by striking the Respondent's pleadings and disallowing him to participate further in the proceeding regarding custody related issues, the court may not have a full evidentiary record and this is generally required to make decisions that involve children's best interests.

[69] I find that this is one of those egregious and exceptional cases where striking an offending party's pleadings is the correct order to make.

[70] The Respondent does not demonstrate any of the traits of a litigant who is invested in their court matter. He shows no desire to participate in the process and attempt to further his claims and/or disprove those of the Applicant. Even if the court imposed a lesser remedy than striking his pleadings for his multiple breaches of court orders and the Family Law Rules, it is very unlikely that he would take advantage of the opportunity to participate in this proceeding. For a meaningful period of time, he has not done the basics required of him, such as communicate with his lawyer; provide financial disclosure; and show up to court. He has given up. He has abandoned his claims.

[71] Striking the Respondent's Answer does not run afoul with the requirement to deal with cases justly. The procedure has been fair to both parties. The Respondent chose not to take advantage of the many opportunities granted him to meaningfully participate in this proceeding. To strike the Respondent's pleadings and to allow the matter to proceed on an uncontested basis, at this point in the litigation, is dealing with the case justly. The matter will now proceed in a way that is fair; that will save expense and time; that will deal with the case in ways that are appropriate to its importance and complexity; and that will give appropriate court resources to the case while taking account of the need to give resources to other cases.

Order

[72] For the reasons above, I make the following order:

(a) The Answer of the Respondent dated February 25, 2017 shall be struck. All his claims made therein shall be dismissed. The Applicant is permitted to proceed with the claims set out in her Amended Application dated December 28, 2017 on an uncontested basis.

Released: April 16, 2019

Signed: Justice Susan Sullivan