Court Information

Date: December 9, 2019

Court File Number: 965/17

Ontario Court of Justice

7755 Hurontario Street, Brampton, Ontario

Endorsement: Justice L.S. Parent

Parties

Applicant: Sasha Justyne Pacheco

Counsel: Moxi Sahi

Respondent: Norris Lloydel Gregory

Background

[1] On July 25, 2019, I granted leave to Ms. Pacheco to bring a motion seeking an order striking Mr. Gregory's Answer filed January 4, 2019, and if granted, a final order in accordance with the claims raised in her Amended Application filed October 9, 2018.

[2] On the scheduled hearing date of the motion, namely September 25, 2019, Mr. Gregory sought and was granted, on consent, an extension of time to October 30, 2019 to serve and file his affidavit in response to the motion. Ms. Pacheco was given until November 15, 2019 to serve and file her affidavit in reply. The motion was thereafter scheduled to proceed on November 22, 2019.

[3] The motion proceeded as scheduled on November 22, 2019. Following the hearing of submissions, I reserved my decision.

Position of Ms. Pacheco

[4] Ms. Pacheco has filed a Notice of Motion, dated August 19, 2019 located at Tab 3, Volume 3 of the Continuing Record seeking an order striking Mr. Gregory's Answer filed January 4, 2019. The notice thereafter seeks a final order on terms addressing her claims of custody, child support, both retroactive and moving forward, access and costs.

[5] In support of her request, Ms. Pacheco has filed an affidavit in support sworn August 9, 2019, filed at Tab 4, Volume 3 of the Continuing Record and an affidavit in reply sworn November 5, 2019, filed at Tab 1, Volume 4 of the Continuing Record.

[6] The evidence of Ms. Pacheco and submissions made on her behalf by counsel in support of her request to strike pleadings can be summarized as follows:

a) Mr. Gregory avoided service of the Application thereby unnecessarily delaying these proceedings;

b) Mr. Gregory has demonstrated bad faith by not attending at his motion scheduled for May 17, 2019 requesting a variation of the existing access order;

c) Mr. Gregory failed to attend and file a brief for a case conference scheduled for July 25, 2019;

d) Mr. Gregory has no intention of resolving any issues before the court amicably;

e) Mr. Gregory is deliberately wasting the court's time and resources; and

f) Mr. Gregory deliberately destroyed his passport so as to not be in a position to produce this document as required by a court order.

Position of Mr. Gregory

[7] Mr. Gregory opposes the request for an order striking his pleadings.

[8] In support of his position, Mr. Gregory has filed an affidavit sworn October 28, 2019, located at Tab 5, Volume 5 of the Continuing Record.

[9] Mr. Gregory, in his submissions, did not deny that he missed the court appearances on May 17 and July 25, 2019. He does deny the allegations that he evaded service and that he destroyed his passport.

[10] Mr. Gregory states that, as a self-represented litigant, he is doing his best to keep up with the court proceedings. He submits that he is a good father and that he wishes to be a part of his child's life.

Law and Analysis

[11] Rule 1(8)(c) of the Family Law Rules, O. Reg. 114/99 (FLR) states:

FAILURE TO OBEY ORDER

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,

(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;

[12] Rule 1(8.1) of the FLR states:

FAILURE TO FOLLOW RULES

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).

[13] Rule 1(8.4) of the FLR states:

CONSEQUENCES OF STRIKING OUT CERTAIN DOCUMENTS

If an order is made striking out a party's application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

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

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party's absence.

4. A date may be set for an uncontested trial of the case.

[14] The issue to be determined is whether or not the behaviour of Mr. Gregory, whether acknowledged or denied by him, warrants the elimination of his participation in these proceedings despite his declaration that he wishes to participate.

[15] Mr. Gregory has admitted to (a) failing to obey a court order for the filing of documents and (b) failing to attend two court appearances. He denies all other allegations raised against him by Ms. Pacheco.

[16] Striking a party's pleadings for non-compliance is a remedy available to the court. However, it is to be reserved for only the most serious and exceptional cases. It is to be used sparingly and with great care and even reluctance. See: Stulberg v. Batler, [2009] O.J. No. 4780, 78 R.F.L. (6th) 199 (Ont. C.J.), reversed on other grounds 2010 ONSC 5299, 94 R.F.L. (6th).

[17] This cautious approach is one that the court should employ as the consequence of a party not being able to present an argument and/or participate in the proceedings affects the ability of the court to have all of the relevant information available in deciding issues that affect children and families.

[18] At the same time, however, this must be balanced in relation to fairness to both parties and to the integrity of the process in family law litigation whose primary objective is to resolve cases justly which includes the criteria set out in Rule 2(3) FLR, namely:

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.

[19] As summarized in David Steinberg et al. Ontario Family Law Practice 2014 (Markham: LexisNexis, 2013) at 1403, the Ontario Court of Appeal noted in Ablett v. Horzempa, 2011 ONCA 633, [2011] O.J. No. 4391, that:

"… the courts must use the utmost caution in resorting to this sanction due to the seriousness of denying a litigant their right to participate in the court process. This is a drastic remedy of last resort which is restricted to particularly egregious cases of deliberate, persistent non-compliance, total disregard for the court process, and failure on the part of the offending party to either comply with or adequately explain non-compliance."

[20] In Purcaru v. Purcaru, 2010 ONCA 92 (Ont. C.A.), [2010] O.J. No. 427, the Ontario Court of Appeal emphasizes that special care must be taken in family law cases where the interests of children are at issue:

The consequences of striking pleadings or limiting trial evidence when custody or access is at issue was discussed in King v. Mongrain 2009 ONCA 486, (2009), 66 R.F.L. (6th) 267 (Ont. C.A.), where Gillesse J.A. observed at p. 273 that pleadings should not be struck if such a remedy leaves the court with insufficient information to determine custody. See also Haunert-Faga v. Faga, (2005), 203 O.A.C. 388 (C.A.).

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. As this court said at p. 23 of Marcoccia v. Marcoccia 2008 ONCA 866, (2009), 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is "a serious one and should only be used in unusual case". The court also explained at p. 4 that the remedy imposed should not go "beyond that which is necessary to express the court's disapproval of the conduct in issue." This is because denying a party the right to participate at trial may lead to factual errors giving rise to any injustice, which will erode confidence in the justice system.

[21] The interests of a young child are clearly at issue here both with respect to what parenting plan is in this child's best interests, as well as what child support, retroactively and ongoing, should be payable in the parenting regime to be determined potentially after trial.

[22] I note that both parties have taken an adversarial and positional approach to all issues. Each party, in their materials, describe the other party's behaviour as unreasonable and contrary to their child's best interest.

[23] I find that, in this high conflict case, it would be difficult, if not impossible, to make a fair and equitable decision in the best interests of this child without the participation of both parties.

[24] Furthermore, I find that the evidence presented by Ms. Pacheco does not, in my view, meet the threshold, as outlined above, required for an order striking Mr. Gregory's Answer.

Order

[25] For the reasons stated above, Ms. Pacheco's motion to strike Mr. Gregory's Answer filed January 4, 2019 is denied. It follows that her request for a final order on her claims raised in her Amended Application filed October 9, 2018 is also denied.

[26] The matter will remain, as scheduled, for February 11, 2020 at 10:00 a.m. in Courtroom #201 under the terms ordered in my endorsement of November 22, 2019.

Costs

[27] As the successful party, Mr. Gregory is presumed to be entitled to costs. I encourage him to contact Ms. Sahi, counsel for Ms. Pacheco, in order to resolve this matter without further court order.

[28] If the parties are unable to come to an agreement, written submissions limited to the issue of costs can be served and submitted, to my assistant by fax or by e-mail, in accordance with the following timelines:

a) By Mr. Gregory, limited to 2 pages in length, excluding offers to settle and a Bill of Cost, by December 23, 2019;

b) By counsel for Ms. Pacheco, limited to 2 pages in length excluding offers to settle and a Bill of Cost by January 13, 2020; and

c) Any submissions in reply by Mr. Gregory, limited to 1 page in length, can be served and submitted by January 20, 2020.

Justice L.S. Parent