SUPERIOR COURT OF JUSTICE
JENNIFER SINCLAIR
Applicant
v.
JOHN SINCLAIR
Respondent
REASONS
BEFORE THE HONOURABLE JUSTICE C.J. CONLAN
On Wednesday, February 1, 2017, at Walkerton, Ontario
APPEARANCES:
Ms. G. McClelland
Counsel for Jennifer Sinclair
John Sinclair is not present and not represented by counsel
Sinclair v. Sinclair, 2017 ONSC 1032
WEDNESDAY, 1^ST^ FEBRUARY, 2017:
CONLAN, J. – Orally:
THE COURT: These are the Reasons for my decision in the matter of Sinclair v. Sinclair, 16-5152.
The current motion before the Court is found at Volume II of the continuing record, Tab 30.
The motion is brought by the Applicant, Jennifer Sinclair, represented by counsel Ms. McClelland. The motion seeks an order striking the pleadings of the Respondent, John Sinclair, and other relief.
The motion is supported by the affidavit found at Tab 31 of Volume II of the continuing record, sworn by Ms. Sinclair on January 23, 2017.
Although the motion materials were served, Mr. Sinclair has filed no responding materials. Mr. Sinclair has been paged today and is not in attendance. It is currently one o’clock p.m. and court started at 10:00 a.m. In addition, Mr. Sinclair’s counsel Greg Deakin has been paged and is not in attendance.
I wish to make a couple of remarks about the governing law.
The following is taken from the decision of the Court of Appeal for Ontario in Chiaramonte v. Chiaramonte, 2013 ONCA 641,, Justices Rosenberg, Tulloch and Lauwers presiding.
In that case the motion judge had struck the pleadings of the husband, Mr. Chiaramonte, on the basis of inadequate financial disclosure. The husband, Mr. Chiaramonte appealed the decision of the motion judge. The appeal was allowed by the Court of Appeal.
The motion judge’s Order was set aside, as well as the consequential Costs Order.
The Court of Appeal for Ontario outlined that the important Family Law Rules to consider on such a motion are found in Rule 1(8), Rule 10(5) and Rule 14(23). Collectively, those rules give the Court authority to dismiss a party’s case or strike-out that party’s pleadings in certain circumstances including failure to obey Court Orders.
The following is taken from paragraphs 31 and 32 of the Court of Appeal’s decision in Chiaramonte.
“In Family Law cases pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice.
Purcaru v. Purcaru, 2010 ONCA 92, R.F.L (6^th^) 33, at para. 47. The exceptional nature of this remedy is routed in the significance of the adversarial system. As this court recognized in Purcaru at paragraph 49.
“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 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.”
Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of Rule 10(5) para. (b). That rule provides that a Respondent whose answer has been struck is not entitled to participate in the case in any way”.
Again, that is from paragraphs 31 and 32 of the Court of Appeal for Ontario’s decision in Chiaramonte.
The reason why the Court in that case overturned the decision of the motion judge is that the Court of Appeal found that the motion judge erred in finding that the husband had completely ignored Court Orders regarding financial disclosure. The Court of Appeal took the view that the husband, Mr. Chiaramonte, had indeed made “serious efforts to comply” with his disclosure obligations. In light of that finding by the Court of Appeal, the motion judge’s decision was overturned.
Applying that law to the case before me, it could not possibly be said that Mr. Sinclair has made any efforts, never mind “serious efforts to comply” with his financial disclosure obligations. The history of the matter bears that conclusion out. And the history of the matter includes the following.
Back in November of 2016, Ms. Sinclair had a similar motion before this Court to strike Mr. Sinclair’s pleadings. I was the judge presiding in Walkerton on November 16, 2016. At that time Mr. Sinclair did not bother to show up on time and his counsel Mr. Deakin was not present. Instead, an uninformed agent, Mr. Donnelly, was dispatched to Walkerton to ask for an adjournment of the motion. The adjournment request was not on consent, but was granted by me for oral Reasons given that day.
The adjournment was granted because of the relatively high threshold for such a motion. I wanted to give Mr. Sinclair the benefit of the doubt and one last opportunity to try to comply with basic financial disclosure obligations.
Thus, on November 16, 2016, I adjourned the matter to November the 30^th^. In my endorsement on November the 16^th^, I indicated:
“This appears to be an example of flagrant, protracted nondisclosure and noncompliance with Court Orders by the Respondent. He has not provided the disclosure or paid the $500 in costs ordered by Justice Miller on June 22. He has not provided the disclosure or paid the $800 in costs ordered by Justice Fragomeni on August 24. He has failed or refused to respond to numerous requests for disclosure by counsel for the Applicant for many, many months now”.
The matter was put to November the 30^th^ with the idea that Mr. Sinclair’s pleadings would be struck that day if he did not comply with what he had been required to do.
On November 30, 2016, the matter was before the Court again in Walkerton, before Justice LeMay. Justice LeMay gave Mr. Sinclair yet another opportunity. Justice LeMay ordered that