ENDORSEMENT

COURT FILE NO.: FC-10-2959
DATE: 2012-04-12
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sabrina Maria Richichi, Applicant

AND

Antonio Richichi, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL:
David Sinclair for the Applicant
Cynthia Squire for the Respondent

HEARD: April 11, 2012

Procedural Background

[ 1 ] The Applicant Mother has brought a motion to strike the Respondent Father’s pleadings.

[ 2 ] The Mother obtained three orders with respect to disclosure. The orders had specific timelines, and when one was not complied with a motion followed to obtain the next order.

[ 3 ] The last order is dated October 19, 2011 and is based on Minutes of Settlements signed by both parties. It provides that if the Father does not comply with any of its terms then his Answer and any Claim that he has made will be struck.

[ 4 ] No steps have been taken by the Father to vary, change or set aside that consent order.

[ 5 ] The Father admits he did not provide the disclosures or hire a business valuator within the timelines the order requires. After being served with this motion to strike he provided additional disclosure and maintains that he has now satisfied all the requirements and has ordered the business valuation. There is little detail regarding the latter, and while the order requires an estimate as to when it will be completed none has been provided.

Issue

[ 6 ] Even though this is the Mother’s motion to strike, the issue properly framed is whether the Court should decline to strike the pleadings of the Respondent as required by the order of October 19, 2011.

Law

[ 7 ] The relief requested is based on Family Court Rules 1(8) and 13(17), as well as the order of October 19, 2011.

[ 8 ] The father relies on Spettigue v. Varcoe , [2011] O.J. No. 4917 (S.C.J.) , and in particular the passage from D.L. Chappel J. at para. 31:

While an order dismissing all or part of a claim is one of the remedies available for non-compliance with the Family Law Rules , the disclosure requirements under the Child Support Guidelines or an order, 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 or adequately explain non-compliance.

[ 9 ] I accept this as the test to be applied regarding the striking of pleadings. In that case there were two previous orders requiring disclosure. By the time the motion was heard the offending parties had taken steps to comply with the second one. Chappel J. concluded that the conduct of offending parties was not so egregious as to justify striking their pleadings, but noted that had they failed to take steps to bring themselves into compliance with the second order he would have considered striking their pleadings. He provided further timelines for disclosure and indicated that if they were not met and the offending party did not bring a motion prior to their expiry to explain why, then the moving party could schedule a motion to strike their pleadings.

Analysis

[ 10 ] The Mother argues that her proceeding has essentially been stalled from the outset because of the Father’s lack of compliance with the procedural orders. It has been over sixteen months since the start of the application, and she has been unable to move beyond the preliminary stages.

[ 11 ] I find that the lack of compliance with the disclosure orders by the Father has been persistent, deliberate, and dismissive of the court process. This is the fourth time these matters are before the court. The Father’s explanations for the delays are not credible. He maintains that he was not at court when the order of June 27, 2011 was made, and as such did not understand its importance. Yet he was represented by counsel and was present when the orders both before it and after it were made. The Father claims he could not obtain portions of the ordered disclosure because it was in the matrimonial home which the wife possesses. Yet he did not request access to the home to locate this material until well after the court ordered deadline. Regarding the business valuation, the Father provided an affidavit claiming that he only realized in November of 2011 what it cost and he decided then that he could not afford it without more time. He has been required by court orders to arrange for the same since January 24, 2011.

[ 12 ] The breaches here have advanced well beyond the situation that was dealt with in Spettigue, supra . While that case granted the offending parties one more chance, here Mr. Richichi has already had that extra chance. There is no good reason for me not to follow the order of October 19, 2011.

Decision

[ 13 ] The Respondent’s pleadings, namely his Answer and Claim by Respondent, are hereby struck.

[ 14 ] If the parties cannot agree on costs they can obtain a date for argument before me.

Mr. Justice Timothy Minnema

Date: April 12, 2012

COURT FILE NO.: FC-10-2959
DATE: 2012-04-12

ONTARIO SUPERIOR COURT OF JUSTICE RE: Sabrina Maria Richichi, Applicant AND Antonio Richichi, Respondent BEFORE: Mr. Justice Timothy Minnema COUNSEL: David Sinclair, for the Applicant Cynthia Squire, for the Respondent ENDORSEMENT Mr. Justice Timothy Minnema

Released: April 12, 2012