COURT FILE NO.: FC-17-1683
DATE: 2019/09/24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Akiko Sakiyama, Applicant
-and-
Osama (also known as “Osamu”) Sakiyama, Respondent
-and-
964349 Ontario Inc. o/a Japanese Village, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Vanessa Baker-Murray, for the Applicant
No one appearing for the Respondent Osama Sakiyama, self-represented
No one appearing for the Respondent 964349 Ontario Inc. o/a Japanese Village
HEARD: September 19, 2019
ENDORSEMENT
[1] Mr. Sakiyama, the Respondent in this proceeding, has failed to comply with a number of court orders, failed to provide relevant disclosure, failed to respond to repeated correspondence from counsel for the Applicant, Ms. Sakiyama, and generally failed to participate in these proceedings since appearing at the case conference on February 20, 2018.
[2] Ms. Sakiyama seeks an order striking Mr. Sakiyama’s pleadings, noting 964349 Ontario Inc. o/a Japanese Village in default, and allowing her to proceed to a default trial.
[3] For the reasons that follow, I grant these orders.
964349 Ontario Inc. o/a Japanese Village is in Default
[4] 964349 Ontario Inc. o/a Japanese Village was served with Ms. Sakiyama’s Amended Amended Application on August 16, 2019. 964349 Ontario Inc. was previously served with the Amended Application that added it as a Respondent to this proceeding, on February 26, 2019. The corporation has not filed an Answer. The time for doing so has now passed.
[5] 964349 Ontario Inc. was served on August 23, 2019, with a copy of Ms. Sakiyama’s affidavit sworn August 22, 2019, filed in support of this motion. 964349 Ontario Inc. was served with a copy of Ms. Sakiyama’s notice of motion on September 10, 2019. The notice of motion expressly requests that 964349 Ontario Inc. be noted in default. 964349 Ontario Inc. has not responded in any way since service of these documents. 964349 Ontario Inc. did not have anyone attend in court on its behalf, on September 19, 2019. 964349 Ontario Inc. is in default.
Mr. Sakiyama’s Pleadings are Struck
[6] This is one of those exceptional cases where a just determination of this matter requires that Mr. Sakiyama’s pleadings be struck.
[7] Rule 1(8) of the Family Law Rules[^1] provides that a court may strike a party’s pleadings as a consequence of failing to obey an order if the court considers it necessary for a just determination of the matter.
[8] Rule 2 of the Family Law Rules sets out that the primary objective of the court is to decide cases justly. This includes the court enforcing its orders and ensuring that parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.
[9] The power to strike out a party’s pleadings should be used sparingly and only in exceptional cases[^2]. In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice[^3].
[10] In family law proceedings, wilful non-compliance of basic financial information must be considered egregious and exceptional[^4]. A party’s non-compliance must be considered in the context of the strict financial disclosure obligations repeatedly reiterated by the courts[^5] and the Family Law Rules[^6]. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck[^7].
[11] The Court of Appeal provides a decision-making framework for the application of FLRs r 1 (8) in Mullin v. Sherlock, 2018 ONCA 1063, [2018] O.J. No. 6743:
44 First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.
45 Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:
*the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
*the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
*the extensiveness of existing disclosure;
*the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
*any other relevant factors.
46 Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be automatic. Fully compliant disclosure is the expectation, not the exception.
[12] Mr. Sakiyama has failed to comply with several court orders. The court orders that he has failed to comply with are as follows:
The February 20, 2018 order required Mr. Sakiyama to provide a written list of disclosure by March 9, 2018, and a reply to requested disclosure by March 23, 2019. Mr. Sakiyama failed to do either, and repeatedly failed to respond to correspondence from Ms. Sakiyama’s counsel to attempt to obtain a response from him;
The October 18, 2018 order required Mr. Sakiyama to provide a detailed list of disclosure within 30 days, including all documents required under section 21 of the Child Support Guidelines. He failed to provide any documents in response to this order; and
The July 9, 2019 order required Mr. Sakiyama to pay to Ms. Sakiyama $10,000 in interim disbursements, forthwith. It also expressly required Mr. Sakiyama to comply with all existing disclosure orders within 30 days and to provide all evidence upon which he relies to support that his income is less than $200,000 per year. Mr. Sakiyama has not paid the amount required for interim disbursements, provided any further disclosure, or responded in any way to this order.
[13] Mr. Sakiyama has also not paid outstanding costs ordered on October 18, 2018 ($350), January 9, 2019 ($750), or July 9, 2019 ($10,000). These costs awards are related to enforcing support and are therefore being enforced through FRO.
[14] Each of the above orders was served on Mr. Sakiyama. Ms. Sakiyama has filed several letters from her counsel, where she seeks compliance with these orders. Mr. Sakiyama has not responded to any of these efforts to have him comply with his obligations in this matter.
[15] The issues in these proceedings include child and spousal support. A key support issue is determining Mr. Sakiyama’s income. Mr. Sakiyama operates a business, being the other Respondent, 964349 Ontario Inc. Mr. Sakiyama has provided only the most minimal of information regarding his income. The financial disclosure he has provided falls far short of the information he is obligated to provide under section 21 of the Child Support Guidelines and Rule 13 of the Family Law Rules. Mr. Sakiyama has failed to provide basic financial information that he should have provided at the outset.
[16] Although Mr. Sakiyama filed an Answer, sworn financial statement, and form 35.1 on October 12, 2017, he has not filed any further documents with the court in these proceedings. Although Mr. Sakiyama attended the first case conference on February 20, 2018, he has not attended any subsequent court appearances, despite being served with notice to do so. These court appearances include the following:
The motion for disclosure and related relief heard on October 18, 2018. Mr. Sakiyama was personally served with the notice of motion and supporting affidavit on August 24, 2018;
The case conference held on January 9, 2019. Mr. Sakiyama was served by mail with the endorsement setting this date on October 19, 2018, December 17, 2018, and January 16, 2019. Service by mail was approved in the October 18, 2018 order;
The motion for further disclosure, including from third parties, and related relief heard on July 9, 2019. Mr. Sakiyama was served by same day courier sent on June 24, 2019, with the notice of motion and supporting affidavits; and
The motion seeking to strike Mr. Sakiyama’s pleadings held on September 19, 2019. Mr. Sakiyama was served by mail, sent on July 29, 2019, with a copy of the endorsement setting this motion date. Mr. Sakiyama was served on August 23, 2019, with a copy of the supporting affidavit for this motion. Mr. Sakiyama was also served by personal service on September 10, 2019, with a copy of the notice of motion.
[17] Mr. Sakiyama has repeatedly been requested and ordered to provide financial information necessary to determine his income, including information required under s.21 of the Child Support Guidelines and Rule 13 of the Family Law Rules. Mr. Sakiyama has repeatedly failed to provide this information. Mr. Sakiyama has not provided any explanation for his failure to provide this information, comply with the court orders, respond to correspondence from Ms. Sakiyama’s lawyer, or attend court appearances. The only conclusion to be drawn from this conduct is that Mr. Sakiyama refuses to participate in these proceedings in any way.
[18] Ms. Sakiyama has attempted to compel Mr. Sakiyama to provide basic financial information for almost 18 months. Mr. Sakiyama has been provided with repeated opportunities to do so. He has been warned of the possible consequences of not providing this information. Repeated efforts have been made to attempt to compel Mr. Sakiyama to participate in these proceedings, and to comply with his disclosure obligations and other court orders. None of these efforts have been successful. These efforts include:
Repeated court appearances, on notice to Mr. Sakiyama, to which he has failed to attend;
The court orders referred to above, all of which have been served on Mr. Sakiyama. The October 18, 2018 order included an express direction that Mr. Sakiyama comply with the October 18, 2018 order, failing which Ms. Sakiyama may bring a motion to strike his pleadings and impute additional income to him or other enforcement measures to compel him to comply with such orders. The July 9, 2019 order included an express term that Ms. Sakiyama’s motion to strike would be heard on September 19, 2019;
Repeated correspondence and other efforts to communicate from the Applicant’s counsel. Mr. Sakiyama has not responded to any of these efforts; and
Awards of costs have been made against Mr. Sakiyama.
[19] I find that it is appropriate to strike Mr. Sakiyama’s pleadings in the circumstances of this case. I find that Mr. Sakiyama’s failure to comply with the various orders detailed above to be willful and egregious. Given the failure of other efforts to compel Mr. Sakiyama to provide basic financial information and to participate in these proceedings, I find that no other remedy short of striking Mr. Sakiyama’s pleadings will suffice.
[20] In her Amended Amended Application, Ms. Sakiyama also seeks an order for sole custody and primary residence of the child. Given the best interests of the child need to be determined by the court, although I am striking Mr. Sakiyama’s pleadings, and he will not be allowed to participate further in the determination of the financial issues (although he is still required to comply with existing and future court orders), I will allow him to provide information to the court on the issues of custody and access.
[21] Therefore, I order the following:
The Respondent, 964349 Ontario Inc. o/a Japanese Village, is noted in default.
Mr. Sakiyama’s Answer is struck.
This matter will proceed to a default hearing, to be scheduled for two hours on a date before me, through the family counter.
Mr. Sakiyama shall not be permitted to participate further in this matter except as specified below. This does not alleviate Mr. Sakiyama from his obligation to comply with existing and future court orders.
Mr. Sakiyama will be served with notice of the default hearing, by mail, at least 30 days in advance of the hearing date.
Ms. Sakiyama shall serve Mr. Sakiyama, at least 30 days in advance of the default hearing date, with a copy of her affidavit material for the default trial, including her comprehensive affidavit, with the details of the orders she seeks on parenting, and in particular, her proposed access schedule.
Mr. Sakiyama shall be allowed to serve a responding affidavit containing his evidence on the issue of custody and access alone, to be served and filed no later than 15 days before the default hearing date.
Ms. Sakiyama shall be allowed to serve and file a brief reply affidavit, if she wishes, no later than four days before the default hearing.
Mr. Sakiyama may attend the default hearing date and make submissions solely on the issues of custody and access, and the best interests of the child. These submissions shall be no longer than 15 minutes in duration without leave of the court to make longer submissions. Mr. Sakiyama’s submissions shall not include a reference to any evidence that is not already before the court in the affidavit material filed.
Ms. Sakiyama may continue to effect service on Mr. Sakiyama, by mail, to his address on record.
Costs
[22] Mr. Sakiyama shall pay costs to Ms. Sakiyama for the September 19, 2019 motion fixed in the amount of $1,000, payable forthwith. These costs are incurred to enforce Mr. Sakiyama’s support obligation and are enforceable through the Family Responsibility Office.
[23] These costs reflect the partial indemnity of Ms. Sakiyama’s total costs. I find these costs to be reasonable and proportional, given the complexity of the issues. I also find that Mr. Sakiyama’s conduct in failing to comply with court orders and attend court appearances to be unreasonable, resulting in Ms. Sakiyama incurring needless expense, which warrants a higher award of costs against him.
Justice P. MacEachern
Date: September 24, 2019
COURT FILE NO.: FC-17-1683
DATE: 2019/09/24
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Akiko Sakiyama, Applicant
-and-
Osama (also known as “Osamu”) Sakiyama, Respondent
-and-
964349 Ontario Inc. o/a Japanese Village, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Vanessa Baker-Murray, for the Applicant
No one appearing for the Respondent Osama Sakiyama, self-represented
No one appearing for the Respondent 964349 Ontario Inc. o/a Japanese Village
ENDORSEMENT
Justice P. MacEachern
Released: September 24, 2019
[^1]: Family Law Rules, O. Reg. 114/99 as am. [^2]: Roberts v. Roberts 2015 ONCA 450 [^3]: Purcaru v. Purcaru 2010 ONCA 92 [^4]: Manchanda v. Thethi, 2016 ONCA 909 [^5]: See, for example, Roberts v. Roberts, 2015 ONCA 450, at para. 11 [^6]: See Rule 13, Family Law Rules [^7]: Manchanda v. Thethi, 2016 ONCA 909