Cohen v. Cohen, 2015 ONSC 3374

Newmarket Court File No.: FC-13-43111-00 Date: 2015-06-05 Corrigenda Date: 2015-06-18

Ontario Superior Court of Justice Family Court

Between:

Dini Cohen, Applicant

– and –

Robert Cohen, Respondent

Counsel:

Robert A. McNeely, for the Applicant

Lawrence Liquornik, for the Respondent

Heard: April 30, 2015

Ruling on Motions

(Text of original decision has been amended – changes appended)

Jarvis J.

[1] There are two Motions before the court. The applicant (“wife”) principally seeks an Order striking the served, but never filed, pleadings of the respondent husband (“husband”). Pursuant to an Order made by McGee J. on February 18, 2015, the husband was granted leave to deliver a Motion for late filing, on terms. A number of other terms and directions not relevant to today’s Motions were given but those relevant to the husband’s Motion, compliance of which was vigorously disputed, required that the husband’s Motion record contain:

(a) His proposed Answer;

(b) His sworn Financial Statement and Notices of Assessment for 2011-2013 inclusive;

(c) Disclosure earlier ordered by Douglas J. on December 17, 2014; and

(d) An affidavit explaining the husband’s delay in responding since May 2013, a defence on the merits and whether there was any prejudice to the wife that could not be remedied by an award of costs and/or the payment of interest.

[2] As the wife’s Motion was predicated on there being pleadings to strike, the husband’s Motion for leave was argued. The Order of McGee J. had already made provision for an uncontested Trial in the event of the husband’s non-compliance with her Order.

Facts

[3] The wife and husband were married on January 17, 2002 and separated on June 26, 2011. This was a first marriage for the wife and fourth for the husband. There is one child of the marriage, a son, born August 11, 2004, who has resided with his mother since his parents separated.

[4] While the record is unclear about the wife’s income when the parties separated, she disclosed in her Financial Statement sworn when she commenced this Application on March 22, 2013, that she was earning about $23,000 a year. The husband’s income is less clear but what is undisputed is that he was the family’s primary breadwinner, funding its lifestyle through a wholly-owned marketing and internet publishing business. There is, perhaps not surprising in cases involving self-employed litigants, considerable disagreement about the husband’s actual income and value of his business interests. Certainly, and in the circumstances of this case, the husband’s financial affairs are opaque.

[5] The husband signed an Answer dated May 23, 2013 but never filed it. He had chosen to represent himself. At a case conference held by Nelson J. on October 4, 2013, and at which the husband was represented by counsel, an Order was made on the consent of the parties that mostly dealt with disclosure, especially as regards the husband. In particular, that Order required the husband to attend his mandatory MIP session, gave him 75 days (on a peremptory basis) to provide a catalogue of specified disclosure, and gave procedural directions for an uncontested Trial in the event of the husband’s default. That Order also granted the husband leave to file his Answer and Financial Statement notwithstanding that he had not filed his last three years’ Income Tax Returns and Notices of Assessment.

[6] Shortly after the case conference the husband discharged his counsel. There is considerable dispute when the husband’s motion was argued before me whether the husband had satisfactorily complied with the disclosure Order made by Nelson J. Certainly he never filed his Answer or Financial Statement. By Notice, dated November 18, 2014, the wife moved for an Order striking the husband’s pleadings (this is the wife’s Motion now before the court) and on December 17, 2014, an Order was made by Douglas J. The husband represented himself. That Order directed that the husband “fully answer all disclosure deficiencies” as identified in the wife’s affidavit in support of her Motion “or if full answer is not possible, provide an affidavit describing his best efforts to comply with each individual deficiency and full explanation as to why compliance is not possible.” The Order is very detailed and identified the disclosure deficiencies. It also provided that if the husband failed to comply, his pleading “be struck regarding financial issues only.” The wife’s Motion was then adjourned to February 18, 2015. Shortly afterwards, the husband retained counsel (not the same counsel who had represented him at the case conference).

[7] The Order of Madam Justice McGee required that the husband deliver his proposed Answer, Financial Statement and 2011-2013 Notices of Assessment on or before March 6, 2015. This was done. The Order also required the husband (as noted above in paragraph 1) to complete his disclosure obligations as earlier ordered by Douglas J. and to provide an affidavit that explained his delay since May 2013, set out a defence on the merits and whether there was any non-compensable prejudice to the wife. As already noted, it is the husband’s compliance with these provisions of the Order of McGee J. that are disputed.

[8] The husband served (but again never filed with the court) a Notice of Motion dated March 6, 2015 for leave to file his Answer. It was supported by an affidavit from the husband and a legal assistant (Chazen) employed by husband’s counsel that detailed the efforts being made by, and on behalf of, the husband to provide all outstanding disclosure, and to complete the husband’s Financial Statement. Two affidavits from another legal assistant/law clerk (LaBelle) to husband’s counsel, one of which (sworn March 3, 2015) accompanied the husband’s Motion for leave, and the other (sworn April 17, 2015), were filed, the latter with leave.

[9] The affidavits filed on behalf of the husband detailed (with exhibits in many instances) his efforts to comply with his disclosure as ordered, mostly since he had retained his current counsel. It was clear that disclosure was being provided, continuous efforts were being made to obtain and produce the ordered disclosure, but the disclosure as earlier ordered had not been completed. Some of these efforts were as recent as less than two weeks before the husband’s Motion was heard. When pressed by the court, though, neither counsel was able to satisfactorily itemize what disclosure items were missing.

[10] In explaining his delay, the husband in his affidavit sworn December 12, 2014, raised an issue involving his cognitive abilities. In paragraph 10 of that affidavit the husband swore,

“As the Applicant knows, in September 2008 I got a concussion which made my short term memory almost at zero, my hearing in noisy rooms or multiple people to merge all the sounds together and this made my life terrible. At the same time, my back went out due to the fall. This started a roller coaster nightmare for me as I was unable to work properly and being running my own business our income slowly disappeared.”

[11] This evidence was before Douglas J. when the wife’s Motion to strike was considered on December 17, 2014. The wife, in her affidavit sworn March 25, 2015, alleged that her husband had been admonished by Douglas J. that if the husband was relying on some kind of medical reason for his non-compliance, then proper medical evidence affirming a cognitive disability would be required. While there is no endorsement to that effect in the record, the endorsement later made by McGee J. on February 18, 2015 observed that,

“The court has observed that some of the respondent’s materials suggest that he ought to be considered a special party per Rule 4(2). If so, counsel is reminded that an order must be sought as an initial step and that the motion must be fully evidenced. General assertions by non-experts does not assist the respondent.”

[12] This observation was made based on the affidavit evidence of the husband and Ms. Chazen. In his February 5, 2015 affidavit the husband swore,

“4 I have suffered a number of brain concussions over the last few years as a result of playing hockey. This has affected my short term memory and my organizational skills. My doctor, Dr. Berall, can confirm that I have been referred to a neurologist Dr. Hwang and that my speech and short term memory has been impacted by the concussions which I suffered. I have met with Dr. Hwang three times. Attached to as Exhibit “A” to my affidavit is a copy of a letter from Dr. Berall dated December 22, 2014. Essentially I am operating under some disability which affects my ability to process certain tasks.”

[13] According to the wife (and never disputed by the husband) Dr. Berall is a mutual friend of the parties, specializing in paediatrics and child nutrition. He was, and never had been, the husband’s “doctor” and did not practice in the area, nor have any work or experience in the field, of concussions or cognitive testing.

[14] In her affidavit sworn February 5, 2015, Ms. Chazen swore,

“4 I have personally met with Mr. Cohen on more than one occasion. It is very clear and obvious to me even as a lay person that Mr. Cohen functions with some type of disability. His speech is not typical. Sometimes he labours to get words out of his mouth. His speech is somewhat slower than what one would typically encounter in most other people.

5 It is also very apparent to me from having worked with Mr. Cohen to respond to outstanding disclosure requests that he has difficulty with tasks because of “short term memory issues.””

[15] Ms. Labelle swore on March 3, 2015,

“5 It is highly apparent to me that Mr. Cohen is operating under some type of disability which makes it difficult for him to process information and instruction. Mr. Cohen’s speech is laboured. I have noticed that he has difficulty remembering instructions that I give him. I find myself repeating instructions and reminding him of previous conversations.”

[16] In her affidavit sworn April 17, 2015, Ms. Labelle attached as Exhibits additional disclosure from Mr. Cohen and copies of letters from Mr. Cohen’s counsel to Mr. Cohen’s bankers containing a blanket authorization to release and disclose to the wife anything she requested concerning her husband’s dealing with those institutions, and also identifying the specific disclosure needed as Ms. Cohen had requested.

[17] In her affidavit sworn February 12, 2015, the wife highlighted the contradictory nature of the husband’s evidence about his medical condition. In paragraph 18 of the same affidavit in which he had raised that issue on December 12, 2014, he swore,

“In early November I went to get the information about where I stand in terms of my concussion. The concusion (sic) is completely better. This, plus the fact that since about July 2014 I felt a lot better, I am now back building up my business again and I am announcing some new programs that should make significant money and I have no problem, if this works out, in helping the Applicant with money.”

[18] Moreover, in her affidavit sworn February 12, 2015, the wife swore (at paragraph 40) that quite apart from the unsatisfactory nature of the medical evidence supportive of some kind of disability that was impacting the husband’s ability to complete his disclosure, during their cohabitation the husband,

“…never had a family doctor. He never complained to me about a concussion in November, 2008. He never stopped playing hockey or interrupted his working life. He never saw any doctor for this alleged complaint while we were together...”

[19] This is in addition to her complaint about the self-serving nature of the observations by the legal assistants to husband’s counsel about the cognitive challenges the husband allegedly presented.

[20] What is clear from the foregoing is that the husband has not fully complied with the disclosure Orders of Justices Douglas and McGee but has partially provided, and made arrangements to provide the balance of, that disclosure. His reliance on his alleged cognitive disability as explaining his delay is problematic in the sense of having raised the issue, there is no supporting credible medical evidence. Ordinarily that should end the matter and the husband’s motion dismissed. But other considerations prevail.

Analysis

[21] The primary objective of the Family Law Rules is to deal with cases “justly.” Rule 2(3) provides as follows,

DEALING WITH CASES JUSTLY

(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. O. Reg. 114/99, r. 2 (3).

[22] Mr. Cohen is seeking, in essence, an Order permitting him to file his pleadings pursuant to the court’s discretionary power under Rule 3(5). The issue though is whether he has complied with the Order of Justice McGee (and, by extension, that of Douglas J. and Nelson J.) and whether, even in the absence of full compliance, the husband should be permitted to participate, in whole or in part, in these proceedings (which involve parenting and financial issues).

[23] Rules 8 and 8.1 of the Family Law Rules sanction disobedience of a court order,

FAILURE TO OBEY ORDER

(8) 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,

(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 the 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 or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

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). O. Reg. 322/13, s. 1.

[24] The consequences of a pleading being struck (or, in this case, filing of that pleading not being allowed) can be serious. In Purcaru v. Puracu,[^1] the Ontario Court of Appeal accepted that pleadings should only be struck “in exceptional cases and when no other remedy would suffice.” Further,

[49]…[t]he adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained wherever 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 this court…[D]enying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.”[^2] (bolding added).

[25] In Kovachis v. Kovachis,[^3] a case also involving striking a party’s pleadings and where, like this case, there had been a consent Order for disclosure earlier made, the court commented that,

“… Without one side’s participation in the trial, there is a risk the court will not have either enough information or accurate information to reach a just result. If the judgment provides for continuing obligations that can only be varied on changed circumstances, as many family law judgments do, the injustice may be perpetuated.” (bolding added.)

[26] There is no practical difference in denying a party the right to participate in a trial whether that denial arises as a result of the court refusing (as asked by the wife in this case) to allow the husband to file his pleadings, or to strike pleadings already filed. The effect is the same, and the discretion to deny participation must be used sparingly and with caution.

[27] In Kovachis, four related considerations persuaded the court that denying the husband participation in proceedings that centered on financial issues between the parties was unwarranted. Those were[^4],

1. The substantial disclosure Kovachis had already made;

2. The failure of the motion judge to itemize what disclosure Kovachis had not provided;

3. The absence of any evidence that Kovachis wilfully disobeyed any of the previous disclosure orders; and

4. Proportionality, now a fundamental principle of all civil proceedings in Ontario.

[28] In the case at bar there is no doubt that the husband has made significant, but not complete, financial disclosure as ordered and that this process remains underway, possibly nearing its conclusion. I am unable to determine whether that disclosure has been “substantial” as that is described in Kovachis because neither counsel was able to clearly itemize precisely what disclosure was outstanding, although disclosure was outstanding. It seemed to me that the parties were simply leaving to the court the task of sifting through the competing affidavits and letters between counsel to determine what disclosure, or part thereof, had been provided and whether what had been provided was satisfactory. Moreover, and notwithstanding that the disclosure Order of Nelson J. (which was the basis for the Order of Douglas J.) was made on consent, neither counsel dealt with the issue of proportionality, particularly how the disclosure already made was important or material to the financial issues, or if that disclosure was deficient or absent how that impacted the case.

[29] The court in Kovachis commented on the principal of proportionality in relation to the disclosure process,

“Before striking Kovachis’ pleadings, consideration ought to have been given to the importance or materiality of the items of disclosure Kovachis had not produced. Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance: see Chernyakhovsky v. Chernyakhovsky. Disclosure orders must be fair to both parties and appropriate to the case.

The motion judge did not consider proportionality, and I am not satisfied that any of the disclosure Kovachis has not provided is so important to the issues in this proceeding that his pleadings should have been struck.”[^5] (citations omitted).

[30] While, to paraphrase Quinn J. in Gordon v. Starr[^6], court Orders are not suggestions, “non-compliance must have consequences,” the husband in this case cannot be said, in my view, to have wilfully disobeyed the previous disclosure Orders despite the serial nature of the disclosure provided, often untimely, but nearing, so it appears, completion. In my view, and notwithstanding the husband’s problematic explanation about his personal health issues, the exceptional remedy of striking his pleadings (even on financial issues only) is unwarranted. But just barely. As the Court of Appeal in both Purcaru and Kovachis observed, persuading an adversary to comply with the Orders of the court must be weighed against the risk of factual errors and injustice, especially in the area of family law where there may well be, as there will be in this case dealing with support, continuing obligations.

[31] In the circumstances then, the husband’s motion will be granted and the wife’s motion to strike the husband’s pleadings will be adjourned, both on terms.

[32] Rule 1(7.2) of the amended Family Law Rules permits the court to make procedural orders as are just. The rule is not exhaustive as to what directions may be given or conditions imposed. In this case, the following shall be done:

(1) The husband shall file his Answer and sworn Financial Statement by no later than June 30, 2015;

(2) On or before June 30, 2015, the husband shall also deliver to the wife and file with the court an affidavit which contains a chart identifying what if any disclosure is outstanding from Exhibit “D” to the wife’s affidavit sworn November 7, 2014 as referenced in Paragraph 2 of the Order of Douglas J. dated December 17, 2014 and advising as to why non-compliance has not been possible;

(3) If the husband fails to comply with (1) of this Order, the wife may move for an Order (pursuant to Form 14B) for an uncontested Trial. In the event that the husband fails to comply with (2), and the wife contends that the husband’s explanation for any non-compliance is unsatisfactory, then she may renew her motion to strike, on financial issues only. If so, the wife shall file along with her supporting material a list itemizing the husband’s disclosure deficiencies and their importance to the financial issues between the parties.

[33] The husband should be aware that nothing less than full and timely compliance with this Order will be acceptable. He has been given successive opportunities to comply with the Family Law Rules and Orders of the court.

[34] The Order of McGee J. reserved the issue of costs to the determination of the motions judge. Each party shall deliver (if so advised) their costs submissions limited to three double-spaced pages together with their draft Bills of Costs, Offers to Settle (if any) and Authorities upon which they may be relying by July 15, 2015.

Justice D.A. Jarvis

Released: June 5, 2015

AMENDMENT

The heard date on page 1 has been amended to read: Heard: April 30, 2015

[^1]: 2010 ONCA 92, 265 O.A.C. 121 at [47]. [^2]: Supra at [49]. [^3]: 2013 ONCA 633 at [25]. [^4]: Supra at [3]. [^5]: Supra at [34]. [^6]: 2005 ONSC 6048, 137 A.C.W.S. (3d) 988 (Ont. S.C.) at paras. 8, 15; Boyd v. Fields, [2007] W.D.F.L. 2449 (Ont. S.C.) at paras. 12-14.