Introduction

[1] The Applicant, Dariush Azimi and the Respondent, Ameneh Mansoury-Tehrany, had a fairly short marriage which began in 2004, and ended in September, 2009, when Mr. Azimi was charged with assaulting the Respondent. Those charges were dismissed. There were subsequent criminal charges against Mr. Azimi of assaulting and threatening the Respondent; he states that all of these charges have been withdrawn.

[2] Mr. Azimi is a computer consultant, and was self employed during the marriage. He commenced these proceedings by Application dated October 23, 2009. He was eventually ordered to pay child support based upon his 2007 income of $93,059 per annum. Mr. Azimi states that he cannot pay that support and makes nothing like that at present. As far as I can determine, the child support is not being paid.

[3] There is one child of the marriage, namely Atra Azimi, born November 18, 2007. She now lives with the Respondent. Mr. Azimi was granted temporary supervised access to his child but he has not exercised those access rights and has not seen Atra since 2009.

[4] Mr. Azimi states that because of the criminal charges he has been unable to work and has no income. He has had three different lawyers in these proceedings, and is now unrepresented. He feels that he cannot get out from under the various orders that have been made in this proceeding; at one point he even objected to the setting aside of a registrar’s order to strike these proceedings for delay because he wished a “fresh opportunity to litigate” and he wished the various temporary orders made in these proceedings expunged through the dismissal of his own application.

[5] Naturally enough, due to Mr. Azimi’s self employed status, and his subsequent failure to earn income or to pay support, disclosure is a major issue in these proceedings. A number of orders for disclosure have been made and the Applicant has failed to comply with many of the terms of those orders.[^1] The Respondent brings a motion to strike the Applicant’s pleadings for failure to comply with those orders. Alternatively, the Respondent requests an order that the Applicant not be permitted to bring a motion or to take any fresh step in these proceedings until he has complied with the various orders.

[6] For the reasons set out below, I have determined that an order will go striking the Applicant’s pleadings and permitting the Respondent to proceed by way of default proceedings under Rule 23. I have, however, stayed my order to allow the Applicant to make the disclosure in question, and to bring a motion to set aside this striking of pleadings within 30 days of the date of this order.

Background Facts

[7] As noted above, these parties were married in Iran on December 23, 2004. The Applicant sponsored the Respondent’s immigration to Canada and she landed in Canada on August 25, 2005. The parties moved into the Applicant’s condominium located at 1913 Northtown Way, Unit 1913, Toronto, Ontario. That condominium was later sold and a house purchased in the Applicant’s name at 142 Ivy Jay Crescent, Aurora, Ontario. That home has now been sold, and the net proceeds are being held in trust by the real estate lawyer to the credit of this action.

[8] There is one child of the marriage, namely Atra Azimi, born November 18, 2007.

[9] There have been several allegations made by the Respondent that she was assaulted and/or threatened by the Applicant. One alleged assault took place in May, 2009, when the Respondent says that the Applicant shoved her and she called the police; the Applicant was not charged but left the home for one night. The marriage broke down on September 23, 2009, when the police were called by the Respondent and Mr. Azimi was charged with assaulting her. He was removed from the home. Ms. Mansoury-Tehrany remained in the home with Atra. Mr. Azimi denied the assault, and the charges were eventually dismissed. These proceedings were commenced by Mr. Azimi in October, 2009.

[10] Until 2005, Mr. Azimi worked for the government of Ontario. He then became self-employed as a computer consultant. He states that because of the assault, he has lost his ability to work in his field or obtain contracts for computer consulting. He states that he presently has little or no income because of the criminal charges.

[11] The proceedings include competing claims for custody and access; Mr. Azimi has supervised access that he has apparently not availed himself of and he has not seen his daughter since separation. Support and equalization of property are also live issues. Disclosure is obviously important both due to the Applicant’s self employed status and his subsequent drop in income. The Applicant was ordered to pay temporary child support based upon his 2007 income, which was in excess of $93,000 per annum. Unfortunately, and largely because of the Applicant’s failure to make proper and meaningful disclosure, there has been little clarity as to the Applicant’s income; as a result, he remains liable to pay support on the basis of income that is probably not being earned by him as no court is willing to change the support without that disclosure being made.

[12] A number of orders have been made in these proceedings over the last 24 months which can be summarized as follows:[^2]

a) On January 22, 2010 at the first case conference in this matter, both parties appeared with counsel. McGee J. ordered on consent that the Applicant could attend at the matrimonial home to pick up his personal belongings with a police escort. The home was to be listed for sale. The order further dealt with temporary custody and access; Ms. Mansoury-Tehrany was awarded primary residence of Atra and Mr. Azimi received weekly supervised access. The appointment of the Office of the Children’s Lawyer was requested. Regarding disclosure, the Applicant was ordered to provide his sworn financial statement on or before March 15, 2010 and the parties agreed to exchange requests for information before that date.

b) On April 21, 2010, Ms. Mansoury-Tehrany brought a motion for carriage of the sale of the matrimonial home and for disclosure. The Applicant appeared without counsel. The Applicant had not been paying the mortgage, and Nelson J. gave Ms. Mansoury-Tehrany carriage of the sale. Nelson J. further ordered that the net proceeds of any sale be held in trust pending agreement between the parties or order. The Respondent’s request for information had been served; the Applicant was ordered to provide the documents set out in the request for information no later than May 3, 2010. Costs were ordered against the Applicant in the amount of $1,500 payable forthwith.

c) On May 10, 2010, the case conference was continued before McGee J. She noted that the Applicant had not filed a financial statement as ordered by her on January 22, 2010, nor had he responded to the form 20 as ordered by Nelson J. on April 21, 2010 or paid the costs under the Nelson J. order. McGee J. ordered child support payable in the amount of $822 per month based upon the Applicant’s 2007 income of $93,059 which appears to be the only income information which was available to her. She further ordered that the Applicant cannot vary the amount of child support until he has complied with the costs and disclosure provisions of the order of Nelson J. dated April 21, 2010. She further ordered documentation produced as attached in Schedule “A” to the endorsement on or before June 1, 2010. She finally issued a further order in respect of the appointment of the Office of the Children’s Lawyer.

d) On June 17, 2010, on consent, Rogers J. ordered that Mr. Azimi would have access to Atra at the Supervised Access Centre on a weekly basis, to increase to twice weekly after four weeks. Mr. Azimi also received telephone access. Apparently the costs were still unpaid; Mr. Azimi agreed to pay the costs to the Respondent’s solicitors within 30 days and also to pay the first two payments of child support on or before June 24, 2010.

e) On July 21, 2010, the Respondent brought a motion to dispense with the Applicant’s signature as necessary to close the sale of the matrimonial home. No material was filed by the Applicant and he attended by telephone. The order was granted by Rogers J. as requested and costs of $2,500 were ordered, payable on or before August 31, 2010.

f) No subsequent steps were taken in this action by either party. The clerk served a Notice of Approaching Dismissal on October 25, 2010, and issued a Dismissal Order on January 4, 2011. The Respondent brought a 14B motion to reinstate the action which was first brought before Rogers J. on March 17, 2010. The motion to reinstate was originally brought on an unopposed basis; however, the Applicant retained new counsel and resisted the reinstatement of the action, largely based upon his belief that it would be best to start over considering the temporary award of support and the supervised access order, both of which he felt were unfair and which would die were the action dismissed for delay. Rogers J. expressed her concern about the Applicant’s resistance to reinstatement on March 22, 2011 and gave the Applicant until March 31, 2011 to file his objection to the reinstatement by 14B motion. He filed his materials objecting to reinstatement, and on July 6, 2011, a case conference was held before Nelson J. Presumably based on the advice given by Nelson J., an order was made on consent that the matter would be reinstated immediately and adjourned to a case conference. Costs were ordered against the Applicant in the amount of $1,500, payable from the funds held by the real estate lawyer. The Office of the Children’s Lawyer was again asked to become involved.

g) On August 2, 2011, a further case conference was held before McGee J. She noted that no current financial statement had been filed. She adjourned the matter to a settlement conference on October 18, 2011. She further ordered that prior to that date, the Applicant file a current financial statement, proof of current income, his 2010 Income Tax Return and Notice of Assessment and evidence of the values of debts in the net family property statement not agreed upon.

h) On October 18, 2011, Ms. Mansoury-Tehrany and her counsel as well as Mr. Azimi’s counsel appeared before McGee J. at a settlement conference. Mr. Azimi was not present; this was because he had been charged again and was then subject to a recognizance. McGee J. stated that she was “troubled by [Mr. Azimi’s] failure to provide court-ordered disclosure, and his total disregard of the terms of my Aug. 2, 2011 order.” She noted that Mr. Azimi failed to provide any of the material that she had ordered to be produced in her August 2, 2011 order. McGee J. ordered costs of $1,000 payable by Mr. Azimi from the house proceeds; she further ordered that the Applicant would have until November 4, 2011 to produce all of the documents set out in the attached schedule failing which the Respondent may then serve a motion to strike pleadings, to be scheduled during the sittings.

[13] Mr. Azimi did not make the disclosure. The Respondent accordingly brought the motion to strike returnable during the November, 2011 sittings.

[14] Mr. Azimi attended before me on November 16, 2011 in response to the motion to strike served by the Respondent. His lawyer had been discharged but no Notice of Change in Representation had been filed. Notwithstanding the attendance of his lawyer at the previous case conference, Mr. Azimi stated that he was not aware of the motion or the order of McGee J. The motion was adjourned to January 24, 2011 by which point in time, the Applicant had served a financial statement and an affidavit. The matter was argued before me at that time.

[15] The disclosure that was ordered is summarized in the Disclosure Compliance Chart which was prepared by Respondent’s counsel and which is attached as a schedule to this endorsement. During argument, Mr. Azimi reviewed the chart and agreed with much of its contents; he acknowledged that certain items of disclosure had not been provided and that he was in default of a number of the orders in this matter.

Analysis

[16] The basis for an order striking the pleadings of the Applicant lies under Rules 1(8), 13(17), and 14(23) of the Family Law Rules.[^3] Under Rule 1(8), where a party fails “to obey an order in the case”, I may make an order “dismissing a claim made by a party who has willfully failed to … obey the order.” I may also make any other order that the court “considers necessary for a just determination of the matter, on any conditions that the court considers appropriate”.

[17] Under Rule 13(17), if a party fails to provide financial information or a financial statement as ordered by the court, I may “dismiss the party’s case” (Rule 13(17)(a)) or “strike out any document filed by the party” (Rule 13(17)(b)).

[18] Unlike Rules 1(8) and 13(17), Rule 14(23) deals only with an order made on motion; in the case where a “party does not obey an order that was made on motion”, I may “dismiss the party’s case or strike out the party’s answer or any other document filed by the party.” (Rule 14(23)(a)). I may also make “any other order that is appropriate.”

[19] Other than the order of Nelson J. dated April 21, 2010, all of the orders made for disclosure were made at various case conferences. Nelson J.’s order was the only disclosure order made on motion. Accordingly, the jurisdiction to strike pleadings or make any other order under Rule 14(23) only applies to Nelson J.’s order of April 21, 2010; regarding the breaches of the remaining orders, my jurisdiction to strike or dismiss lies under Rules 1(8) and 13(17) of the Family Law Rules.

[20] It is apparent from a review of the cases that a court should exercise caution in exercising it’s discretion to strike pleadings or dismiss a party’s case under any of Rules 1(8), 13(17) or 14(23). Striking a party’s pleadings is an extreme remedy; it removes the party from the litigation and deprives him or her from any opportunity to place their side of the story before the court in the context of a trial. It severely limits the rights of the non-compliant party insofar as that party loses the right to give evidence, cross examine or to otherwise advocate his or her position at trial. Naturally enough, the discretion to strike pleadings or dismiss a party’s case under these Rules should only be exercised where no other remedy is available: see Purcuru v. Purcuru, 2010 ONCA 92 at para. 47. As stated at para. 48 of that case, “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.” Needless to say, a minor failure to comply with a disclosure order should not be used as a means of removing a party from the litigation; there must be a major breach of a court ordered obligation to provide relevant and probative disclosure or documentation in order for the court to exercise its discretion to strike pleadings: see Chernyakhovsky v. Chernyakhovsky, 2005 CanLII 6048 (ON SC), 2005 CarswellOnt 942 (S.C.J.) at para. 8.

[21] That being said, there must be sanctions imposed where there are wilful breaches of a court order for financial disclosure. As stated by Quinn J. in Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007], O.J. No. 3264 (O.C.J.) at para. 23:

...Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.

[22] In Molina v. Molina, 2011 ONSC 3030 S.E. Healey J. struck a party’s pleadings where she found the “non-compliance [to be] repetitive, aggregious (sic.) and deliberate” (para. 28). In striking the Mr. Molina’s pleadings in that case, she followed Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. No. 486 (S.C.J.) which stated that where there was a triggering event permitting the striking of a party’s pleading, the court may then consider whether to exercise its discretion to not sanction the breach of the order; “this discretion will only be granted in exceptional circumstances.” (para. 6).

[23] In Chernyakhovsky, supra, Rogers J. considered the criteria for striking a party’s pleadings for failure to make disclosure. As noted above, in addition to the history of the litigation and the conduct of the party being sanctioned, the court must also review the nature of the disclosure that was not provided:

The courts must, however, be clear that the disclosure process cannot be used to cause delay or to reap tactical advantage. The court must consider the burden certain disclosure requests bring for the disclosing party. Is the probative value of the sought-after disclosure so great in relation to the difficulty of obtaining the disclosure that said disclosure would be ordered and sanctions imposed for failure to comply? How does the disclosure request fit into the overall context of the case? Is the issue for which disclosure is requested a central issue in the case? Or is it peripheral? Does the cost of obtaining the disclosure outweigh the value of the issue in the case? Is there a more expeditious and cheaper way of getting the same information? As the case develops, is the disclosure still related to an important issue in the case? As always, the court must balance these competing interests to ensure fairness. (para. 8).

[24] In the present case, the Applicant acknowledges having failed to provide certain items of disclosure. As noted in the Disclosure Compliance Chart, certain items have been provided. The Applicant did, for example, file financial statements on June 4, 2010 and October 18, 2011; Ms. Cianfarani points out that no supporting documentation was attached to prove the $4,200 in self employment income claimed. He did file most of the documentation necessary to support all assets and debts in his financial statement as ordered by McGee J. on May 10, 2010. He provided his 2008 and 2009 Income Tax Returns, again as ordered on May 10, 2010.

[25] However, there are significant breaches of the various disclosure orders. In his affidavit sworn December 16, 2011, he at times states that he failed to disclose because he did not think it necessary or relevant; he also states elsewhere that he simply objects to producing the ordered documentation. Based upon the evidence filed, including Mr. Azimi’s affidavit sworn December 16, 2011, I find that the major breaches of the various orders are as follows:

a) Mr. Azimi has failed to provide his 2008, 2009 and 2010 Notices of Assessment or his 2010 Income Tax Return (as ordered by McGee J. on May 10, 2010, August 2, 2011 and October 18, 2011); the Applicant gives no excuse for his failure to provide this documentation;

b) Mr. Azimi has failed to provide his year to date income or any letters from employers setting out his hourly rate and hours of work or his last three pay stubs (as ordered by McGee J. on May 10, 2010 and October 18, 2011); Mr. Azimi states that he has not been employed and accordingly there are no letters or proof available.

c) Mr. Azimi has failed to provide all of his personal bank statements or passbooks and cancelled cheques from 2007 to present (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi has provided statements for Azimi Consulting only up to 2009. He states in his affidavit that he objects “to providing any further information.”

d) Mr. Azimi has failed to provide his remunerative contracts for 2007, 2008 and 2009 and 2010 (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi states that his wife has all of these contracts, (although it is difficult to know how she could have in her possession any contracts arrived at after separation);

e) Mr. Azimi has failed to provide a valuation of his OMERS pension plan (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi states that this is not relevant information as he left the Government of Ontario employment approximately a year after marriage.

f) Mr. Azimi has failed to provide his credit card statements for three years prior to March 15, 2010 to present (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi has provided the first pages only of his RBC Visa for 2008 and 2009; he states in his affidavit that he objects “to providing any credit card or banking statements after [the date of separation]” and he asks in his affidavit that the Respondent provide reasons for wanting that information.

g) Mr. Azimi has failed to provide proof of his debts including personal loans (as ordered by Nelson J. on April 21, 2010); Mr. Azimi again objects to providing this information.

h) Mr. Azimi has failed to provide particulars of his job efforts from September 1, 2009 to present (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi outlines in his affidavit several lost opportunities for jobs resulting from charges laid by the Respondent; he did not provide a list of jobs that he has applied to or responses from potential employers.

i) Mr. Azimi has failed to provide particulars as to an accounting of three separate transactions involving the transfer of significant sums of money on September 25, 2009 (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi states in his affidavit that the money was declared in 2009 as his income and that, “I object to providing any further information.”

j) Mr. Azimi has failed to provide a copy of the year end financial statements for 2007, 2008 and 2009 for all businesses operated by him (as ordered by McGee J. on May 10, 2010 and October 18, 2011 and also as ordered by Nelson J. on April 21, 2010); Mr. Azimi states that this information is in the hands of Ms. Mansoury-Tehrany.

[26] Mr. Azimi does not seem to understand the premise as noted above that a court order is not a “suggestion”; it is mandatory. When I questioned him during argument about this and the fact that the time to object to the providing of this material is long past, he then stated that if I told him to provide the material, he would provide it.

[27] With respect, this is too little, too late. Mr. Azimi was given ample opportunity to provide the disclosure in question and the disclosure under the first order of this court of Nelson J. has been outstanding for 20 months. Had Mr. Azimi provided meaningful disclosure, he may have long ago obtained relief from the child support order of McGee J. made in May of 2010. He chose, however, not to provide the information, and only now questions the relevancy of the documentation. He appears to have purposefully stood in the way of resolving this litigation and, in fact, attempted to bring the litigation to an end in order to escape his responsibilities under the various orders in question. He appears to blame all of his problems on the criminal charges, but had he made proper disclosure, he may have actually convinced the Respondent that he was, in fact, not in a position to pay the support as ordered. He certainly could have then brought a motion to vary that order. Mr. Azimi’s affidavit sworn December 16, 2011 makes it apparent that he is refusing to provide the much of the disclosure as ordered; as such, his refusal to provide that disclosure is also wilful and purposeful.

[28] I find that the history of this matter, and the various orders made, make it apparent that disclosure has been at the forefront of this matter due to the Applicant’s self employed status and his post separation failure to continue remunerative employment. I also find that the Applicant has wilfully failed to comply with the disclosure orders of McGee J. made on May 10, 2010 and October 18, 2011 as well as Nelson J.’s order of April 21, 2010. Much of the disclosure that the Applicant failed to provide was relevant, and indeed crucial to determination of the financial issues at issue in these proceedings. I find that the disclosure was within the power of the Applicant to provide; his protestations that some was in the hands of the Respondent rings hollow in light of the fact that the Applicant consented to much of that disclosure being provided. Based upon the evidence, most if not all of the disclosure was solely within the power of the Applicant to produce, and it is impossible to come to an accurate income figure for the Applicant or to determine the Applicant’s net family property without that information; although certain items of disclosure may be irrelevant or minor, together the disclosure as ordered is absolutely necessary for the Respondent to determine make her case.

[29] One issue which may cause concern is that if the Applicant’s pleadings are struck, there will be no determination of custody and access of Atra on the merits. The interests of Atra may accordingly be adversely affected through the Applicant’s failure to comply with financial disclosure. However, I note that the Respondent has provided evidence that the Applicant has failed to comply with the investigation of the social worker appointed by the Office of the Children’s Lawyer and that they will be closing their file. The Applicant has not provided evidence to the contrary, and accordingly there will be no prejudice to the child in the event that the Applicant’s pleadings are struck. Certainly, the Applicant does not appear to be concerned about the process under which custody and access will be determined, and he has not taken advantage of the orders granting him supervised access herein.

[30] I accordingly have both jurisdiction and good reason to strike the Applicant’s Application pursuant to Rules 1(8), 13(17) and 14(23) of the Family Law Rules. In light of the amount of time that has gone by since Nelson J.’s order of April 21, 2010 and McGee J.’s original disclosure order of May 10, 2010, and in light of the numerous comments made by McGee J. regarding disclosure in her endorsements at the various case conferences presided over by her, it is appropriate that I do so.

[31] I am accordingly ordering that the application be struck and that the Respondent may proceed by way of uncontested trial under Rule 23 pursuant to her Answer and Claim by Respondent. However, in light of the Applicant’s comments made at the hearing that he was willing to make the disclosure, I am going to stay the order striking the Applicant’s pleadings for 30 days; I do so keeping in mind the statement in Purcuru, supra that the intent of any order ought not to be to remove the litigant from the process, but to have that litigant provide the outstanding disclosure and comply with the orders in question. Accordingly, I am ordering that within 30 days of the date of this order, the Respondent must provide all outstanding disclosure without exception as well as file a financial statement with all required attachments including proof of current income and must also bring a motion to reinstate his pleadings. If filed, the stay will be extended until the motion is heard, and I am directing that it be returnable before me. If I order costs in this proceeding, the Applicant must pay the costs as ordered to continue the stay. I am also going to order that if the Applicant brings a motion to reinstate his pleadings, that he pay into court security for costs of the motion the sum of $2,500; I am seriously concerned that, based upon the history of this matter, that the Applicant may fail to act in good faith in providing disclosure and in reinstating his pleadings; I do not want the Applicant to use this provision for the purposes of delay. If he does not complete all of these steps, the Respondent may proceed by way of Form 23C uncontested trial.

Order

[32] Accordingly, there will be an order to go as follows:

a) The application will be struck and the Respondent is permitted to proceed to obtain a final order through an Uncontested Trial pursuant to her Answer and Claim by Respondent, filed;

b) This order is stayed for a period of 30 days or pending the hearing of the motion set out below, during which the Applicant must complete the following:

i. He must complete and deliver to the Respondent’s solicitor all of the outstanding disclosure under the orders of Nelson J. dated April 21, 2010 and McGee J. dated May 10, 2010 and October 16, 2011;

ii. He must bring a motion returnable before me to reinstate his pleadings, which motion may only be filed upon the Applicant paying into court the sum of $2,500 by way of security for costs of the motion; and

iii. In the event that costs are ordered by me against the Respondent for this motion, and Mr. Azimi has brought a motion which has the effect of extending the stay, he must pay the costs as ordered failing which the stay will be removed.

c) In the event that the stay expires or is otherwise removed, the Respondent may then forthwith proceed by way of uncontested trial by the filing of a Form 23C (Affidavit in Support of Uncontested Trial).

[33] In the event that the Applicant files a motion to reinstate his pleadings, the parties may speak to the trial coordinator in Newmarket about scheduling the motion before me in order to avoid undue delay; alternatively, the motion may be scheduled in Barrie.

[34] The parties may provide written submissions for costs of this motion with the Respondent and then the Applicant to provide submissions of no more than 3 pages in length not including any costs memorandum or offers to settle, on a 10 day turnaround.

McDERMOT J.

Date: February 14, 2012

[^1]: A copy of the Respondent’s Disclosure Compliance Chart was filed at the argument of the motion and is filed as a Schedule to this endorsement.

[^2]: Disclosure provisions in each order are marked in bold.

[^3]: O. Reg. 144/99

Dariush Azimi v. Ameneh Mansoury-Tehrany, 2012 ONSC 1073

Case Summary

Introduction

Background Facts

Analysis

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1