Court File and Parties

COURT FILE NO.: FC-14-47204-00

DATE: 20180524

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Snezana Milutinovic, Applicant

AND:

Radmilo Milutinovic, Respondent

BEFORE: McDermot J.

COUNSEL: R. Switzer, for the Applicant

Respondent unrepresented

HEARD: May 24, 2018

ENDORSEMENT

[1] This is a motion at the commencement of trial to strike Mr. Milutinovic’s pleadings.

[2] Mr. Milutinovic has failed to comply with court orders in this litigation, and has ended up before the court on several previous occasions because of this. On November 16, 2016, Vallee J. heard a motion to strike and found breaches of various court orders in this proceeding. She determined that Mr. Milutinovic provide disclosure failing which the applicant could apply on seven days’ notice to strike Mr. Milutinovic’s pleadings.

[3] At a conference on April 25, 2017, McGee J. noted that the respondent was in breach of his disclosure obligations and ordered specified disclosure failing which the respondent’s pleadings “may be” struck.

[4] The orders continued to be in breach and the motion to strike was renewed before Bennett J. on February 7, 2018. Bennett J. gave the respondent another chance; he allowed for the release of funds to the respondent to obtain his 2015 and 2016 tax returns, crucial in this support case, and also allowed Mr. Milutinovic funds to retain a lawyer to determine what had happened to funds released to his former lawyer. Bennett J. said that the respondent had to request these funds by way of a 14B motion supported by correspondence from the accountant and lawyer and Mr. Milutinovic complied with this direction. Bennett J. made an order on February 26, 2018 for the release of funds to Mr. Milutinovic’s lawyer and accountant so that he would have, at least, the minimum disclosure necessary for trial.

[5] Ms. Switzer has again renewed the motion to strike returnable at the commencement of trial. She says that she has not received the material that was in issue at the motion before Bennett J, specifically the income tax returns. She says that Mr. Milutinovic has not complied with the trial directions of McGee J. made November 14, 2017. She says that there is no room to allow Mr. Milutinovic the ability to continue fighting this case when he has continued his various breaches of the orders in question.

[6] Mr. Milutinovic says that bringing this motion is improper; he says that the Trial Scheduling Endorsement does not allow for motions to be brought. However, my review of McGee J.’s endorsement confirms that no motions were to be brought “but for a mtn… striking pleadings”. There is no prohibition to this motion to strike the respondent’s pleadings at the beginning of trial.

[7] This is a motion under Rule 1(8)(c) of the Family Law Rules which allows the court to strike pleadings “where a person fails to obey an order in a case”. This is a serious remedy; it removes a party from the litigation and prevents that party from having his or her side of the story placed before the court. The court must use caution in doing so, especially on the eve of trial.

[8] That being said, it is a serious business to breach a court order or court orders, something that Mr. Milutinovic acknowledges that he has done. This is especially so, where we are on the first day of trial and the respondent has not provided the disclosure that he was obligated to do by various court orders made throughout these proceedings: see Talisman v. Stryjak, 2015 ONSC 549. And to make this more egregious, it is more than justified where child support is in issue, and the court is left without the ability to determine the respondent’s income to pay that child support: see Henderson v. McClean, 2015 ONCJ 533.

[9] Mr. Milutinovic has filed no material in opposition to the motion. He did not provide proof that he had requested the income tax returns or information as to the released funds as allowed for by Bennett J. He acknowledges that he continues to be in default of the various court orders in this matter both for disclosure and for payment of costs. However, he says that he has been extremely stressed by these proceedings and is not seeing his children. He says that he has been unable to turn his mind to the litigation or deal with it.

[10] Bennett J. ordered that funds be released to a bookkeeper, to allow for the preparation of tax returns which have been requested since September, 2015, as well as to pay a lawyer to investigate what had happened to funds released to the respondent’s solicitor. He did this at the end of February, 2018 by endorsement, so that court at trial would “have the benefit of the best evidence before it.”[^1] Bennett J. also gave the respondent the benefit of the doubt, stating that the fault may not have been that of the respondent but of his lawyer. He refused to strike pleadings at that time, but gave the respondent one last chance to at least provide the crucial disclosure that would have been provided through the respondent’s income tax returns, originally ordered in April of 2017 by McGee J.

[11] However, and what is extremely surprising, if not shocking to the court, is the fact that Mr. Milutinovic sent an email to his bank only this morning requesting the money that Bennett J. ordered to be released. The order for release of funds was made more than 11 weeks ago, yet the respondent only sent the email this morning to his bank directing them to release funds. Mr. Milutinovic acknowledges that he sent the email, but was surprised that the applicant’s lawyer had it. Then it became clear that he had sent the email to Ms. Milutinovic’s lawyer by accident and he acknowledged that he had only sent it today. He had no excuse for this.

[12] I note that this was an email that mistakenly came into the hands of the applicant this morning. It might be argued that it is improper for the court to rely upon it; it was not an exhibit to a sworn affidavit, and it came into the hands of Ms. Milutinovic’s solicitor by inadvertence. However, I note that the respondent has filed no material in response and he was not in a position to file the documentation, specifically the 2015 and 2016 income tax returns, that Bennett J. was intent upon allowing the respondent to request and file. He had a duty to explain when and how he had requested this documentation, and would have been bound to explain when he had requested the accountant to prepare those returns. It is apparent that he has not yet requested the accountant to do the returns and he had a duty to disclose this to the applicant. The fact that this email was only discovered by inadvertence is, in a sense, poetic justice, considering that the respondent should have disclosed his attempts to comply with his disclosure requirements in any event.

[13] Furthermore, I do not rely on the email to prove breaches of the orders; I only rely upon it to determine the nature of the breach for the purposes of this motion.

[14] We are now at court at the commencement of the trial of the financial issues in this matter. I can only characterize Mr. Milutinovic’s failure to request the release of funds to his accountant and lawyer until now as a betrayal of the trust that Bennett J. placed in him in February of this year. If Mr. Milutinovic cannot be bothered to act on a timely basis to obtain the evidence that he needed at this trial, I do not see how he can ask his wife to undergo the costs of a full trial of the financial issues before the court. This is especially so where the information requested is in the hands of the support payor, Mr. Milutinovic, and it is his job to disclose his income in a proper fashion so that child support and spousal support can be set. To date, he has not paid support to Ms. Milutinovic and she has subsisted on various funds releases ordered throughout these proceedings.

[15] This is compounded by the fact that Mr. Milutinovic has not complied with the trial directions in McGee J.’s trial scheduling conference endorsement made in November, 2017. He has not provided an updated financial statement by April 3, 2018 as ordered by her.

[16] As well, both Vallee J. and Bennett J. have outlined the various orders which are in default. Mr. Milutinovic has not bothered to file materials to state that he has complied with any of those orders; Ms. Milutinovic says that he has not complied with those orders and the respondent does not deny this. I have no doubt that Mr. Milutinovic remains in default of the various disclosure and costs orders made in this matter.

[17] Finally, I note that Mr. Milutinovic attempted to blame his former lawyer for his failure to disclose: see the endorsement of Bennett J. dated February 12, 2018. He had his chance to vindicate himself through Bennett J.’s order and did not take that opportunity. I must therefore assume that the responsibility for the breaches of the various court orders lies with the respondent and the respondent only.

[18] I therefore find that the respondent is in breach of the following orders as recited in paragraph 4 of the applicant’s affidavit sworn May 3, 2018:

a. The order of Nicholson J. dated December 10, 2014 requiring the respondent to pay all of the carrying costs of the matrimonial home;

b. The order of Rogers J. dated September 3, 2015 for disclosure including the respondent’s income information for 2015, 2016 and 2017;

c. The order of Vallee J. dated November 24, 2016 requiring disclosure as ordered by Rogers J. above;

d. The order of McGee J. dated April 25, 2017 requiring a certificate of financial disclosure and disclosure of the personal or corporate income tax filings for 2015 and 2016; and

e. The trial scheduling endorsement of McGee J. dated November 14, 2017 requiring an updated financial statement and for disclosure to be provided on or before April 3, 2018.

[19] In light of the respondent’s failure to provide responding materials or to even request the funds for his accountant and lawyer until today’s date, I find these breaches to be the responsibility of the respondent and not his lawyer. I also find these breaches to be intentional and wilful.

[20] The respondent’s pleadings, and specifically his Answer dated January 29, 2015 and filed February 7, 2015, are hereby struck. He is not entitled to participate in the trial in any way or to cross examine any witnesses or to give evidence unless called as a witness for the applicant.

McDermot J.

Date: May 24, 2018

[^1]: Endorsement of Bennett J. dated February 7, 2018.