ONTARIO COURT OF JUSTICE
DATE: 2025-05-27
COURT FILE No.: Sudbury FO-22-00000069-0000
BETWEEN:
Chantal Lance
Applicant
— AND —
Gerald Williams
Respondent
Before Justice G. Jenner
Heard on May 27, 2025
Reasons for Judgment released on May 27, 2025
Jerome Gardner ............................................................................. counsel for the applicant
Gerald Williams not appearing
Reasons for Judgment on Motion to Strike Pleadings
I. Introduction
[1] The applicant mother, Chantal Lance, and the respondent father, Gerald Williams, are parties to an application concerning decision-making responsibility, parenting time, and child support, with respect to their now 16-year-old child.
[2] On today’s date, May 27, 2025, I heard the applicant’s motion to strike the respondent’s pleadings. The applicant argues the respondent has failed to comply with this court’s orders with respect to providing certain financial documents and has failed to comply with the Family Law Rules governing settlement and trial management conferences. The applicant urges the court to strike the respondent’s pleadings such that the trial may proceed on an uncontested basis.
[3] For the reasons that follow, the motion is granted.
II. Procedural History
[4] The applicant brought the underlying application on April 13, 2022, with an initial court date of June 15, 2022. Mr. Kestle appeared for the respondent on that date, and the matter was scheduled for settlement conference on October 6, 2022. On October 6, 2022, the respondent did not attend. Mr. Kestle advised the court that he had tried to contact the respondent by phone and mail without success. Mr. Kestle undertook to continue to attempt contact but was not prepared to be noted as counsel of record. The court ordered the respondent to provide certain financial documents within 30 days.
[5] At a further court appearance on December 13, 2022, no one attended on behalf of the respondent. The matter was adjourned to February 6, 2023, for either an uncontested hearing or a contempt hearing. On February 6, 2023, no one attended on behalf of the respondent. It was noted that the order with respect to financial documents had not been complied with. The matter was adjourned to May 9, 2023, for contempt motion, which was thereafter adjourned to June 2, 2023. On that date, the motion did not proceed, as the respondent attended with significant, though incomplete, financial material.
[6] The respondent served and filed an Answer and Financial Statement in July 2023, as permitted by the court.
[7] A further settlement conference was set for October 23, 2023. The respondent neither attended nor filed a settlement conference brief, as required by r. 17(13). The court ordered costs against the respondent in the amount of $500.00 and payable forthwith. The record today does not speak to whether that costs order has been satisfied.
[8] The respondent then failed to attend subsequent court dates on February 6, 2024; April 3, 2024; June 5, 2024; September 11, 2024; November 12, 2024; and March 12, 2025. On that last date, the court renewed an order for the applicant to provide up-to-date financial documentation by April 18, 2025, and a trial management conference was scheduled for April 28, 2025.
[9] The respondent did not attend the trial management conference, nor did he file a trial management conference brief, as required by r. 17(13). He further did not comply with the court’s order with respect to financial documents. At the conference, the applicant indicated that mail being sent to the respondent’s mailing address—that is, the address the respondent provided when he filed his Answer in this litigation—is being returned as undeliverable. As I was informed that the parties continued to correspond by text message concerning parenting time, I ordered that the applicant was permitted to serve her motion to strike pleadings on the respondent by emailing him a copy to his last known email address and by sending him a text message indicating that motion materials are available for him to retrieve at the applicant’s counsel’s office. I scheduled the motion for today’s date.
[10] Affidavits of Service confirm that the respondent was served in the manner directed. The applicant served and filed her motion on May 9, 2025. It is supported by the affidavit of Rosanne Pitre, assistant to the applicant’s counsel, dated May 8, 2025. The respondent has not filed any material on the motion and did not attend court today.
[11] The trial of this matter remains scheduled for next Monday, June 2, 2025, though the applicant may be seeking an adjournment.
III. Legal Framework
[12] Rule 1(8) of the Family Law Rules broadly empowers a court to respond to a party's failure to obey an order and sets out a non-exhaustive list of tools, including the striking of pleadings. It is discretionary. It permits but does not require the court to make orders in response to a party’s non-compliance. Rule 1(8.1) extends the rule to apply to a party’s failure to follow the Family Law Rules, save that a contempt order is not available.
[13] In a motion brought under rr. 1(8) and (8.1), the court must (i) determine whether there has been a triggering event in the form of non-compliance with a court order “in the case or a related case” or non-compliance with the Family Law Rules; (ii) determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party; and (iii) apply its broad discretion as to the appropriate remedy: Ferguson v. Charlton, 2008 ONCJ 1, at para. 64. Implicit in this analysis is the principle that the court’s response should be proportionate to the non-compliant conduct: Mills v. Hachey, 2018 ONCJ 779, at para. 15. Additionally, a sanction under r. 1(8) or (8.1) “should be restorative to the victim of the breach and punitive to the noncompliant party”: Price v. Putman, 2018 ONCJ 86, at para. 44.
[14] Rules 1(8) and (8.1) must also be read in conjunction with r. 2(2) which provides that the primary objective of the rules is to deal with cases justly. Per subrule (3), 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.
[15] The striking of pleadings is often said to be reserved for exceptional cases where no lesser remedy will provide redress. But, where appropriate, striking pleadings is consistent with the objective to deal with cases justly. If alternative remedies have proven unsuccessful, then the court must meet non-compliance with a responsive remedy, which may include striking pleadings: Manjunath v. Kuppa, 2024 ONCA 668, at paras. 9-12.
[16] Where children’s interests are involved, the court must proceed with caution in striking pleadings, as decisions in a child’s best interests are generally better made with the participation of both parties: King v. Mongrain, 2009 ONCA 486, at para. 31.
[17] Finally, r. 1(8.4) provides that when a party’s pleadings are struck, the party is generally not entitled to further notice of steps in the case and is not entitled to participate in any way. The matter may be dealt with at an uncontested trial in the party’s absence. The court retains the discretion to relieve against these consequences.
IV. Issues
[18] Given this legal framework, the issues to be determined are:
Should the court make a finding under r. 1(8) of the Family Law Rules, that the respondent has breached a court order, or a finding under r. 1(8.1) that the respondent has failed to comply with the Family Law Rules?
If there has been non-compliance of either order, should the respondent’s pleadings be struck?
If the pleadings are struck, should the court make any corollary orders with respect to the respondent’s participatory rights?
V. Analysis
[19] I have no difficulty concluding based on the uncontradicted evidence of the applicant and my own review of the endorsements in this matter that the respondent failed to comply with this court’s two previous orders with respect to financial documentation as well as the court’s rules with respect to filing conference materials.
[20] I agree with the applicant that a remedy is needed and that the appropriate remedy is to strike the respondent’s pleadings. Indeed, the respondent’s filing of his Answer and initial Financial Statement is the only meaningful action the respondent has taken in this matter. He has thereafter been completely absent from the litigation, has failed in his obligation to participate in key steps, and has delayed a final outcome. The previous court orders with respect to costs and updated financial disclosure have not spurred the respondent to participate and comply with his disclosure obligations. The applicant has been exceptionally patient in this matter but is entitled to finality. It would be unfair to allow the spectre of the respondent’s potential future participation to further delay the matter. Striking pleadings is the only remedy responsive to that concern.
[21] Is this a case in which the court should permit some level of participation once the respondent’s pleadings are struck? This is likely a moot point, given the respondent’s history. In any event, I am not prepared to authorize limited participation. It would prejudice the applicant to allow the respondent to participate haphazardly, only providing the court with information he sees fit, on his own timeline. I am mindful that the applicant is not seeking to reduce the respondent’s parenting time—which is being exercised on a regular basis—from the status quo. The main issues appear to be financial.
VI. Conclusion and Order
[22] The court orders as follows on a final basis:
(a) The respondent is found to have breached this court’s orders dated October 6, 2022, and March 12, 2025 with respect to providing financial documents.
(b) The respondent is found to have breached the Family Law Rules by failing to serve and file conference briefs in accordance with r. 17(13).
(c) The respondent’s pleadings are struck pursuant to rr. 1(8) and (8.1).
(d) The matter may proceed to uncontested trial on June 2, 2025 or a date thereafter scheduled by the court. The respondent shall not be permitted to participate in that trial, save that he remains bound by this court’s previous orders with respect to financial disclosure.
(e) The respondent shall pay to the applicant costs for this motion in the amount of $500.00 forthwith.
Released: May 27, 2025
Signed: Justice G. Jenner