Sparr v. Downing 2019 ONSC 6564

COURT FILE NO.: FC-12-540-1

DATE: 13/11/2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Bernard Sparr

Applicant

– and –

Denise Lee Downing

Respondent

Frederick Huard, for the Applicant

Ian A. Wallace, for the Respondent

O’BONSAWIN, J.

REASONS FOR DECISION

[1]

Background

The parties first appeared before me on July 10, 2019. At that time, I made an Endorsement that permitted Mr. Sparr to provide the items/disclosure and monetary sums listed by August 10, 2018, failing which his pleadings would be automatically struck as per Rule 1(8)(c) of the Family Law Rules.

2The parties appeared before me again on November 15, 2018. In my Endorsement, I noted as follows: “Mr. Sparr has paid all outstanding sums owed by him as per my last order. Mr. Vallance provided an extensive list (e-mail from Jim Boyce dated November 8/18) of 21 items of disclosure that have not been complied with. I order Mr. Sparr to provide an Affidavit along with all items of disclosure by December 13/18. It will not be acceptable for Mr. Sparr to simply state that he cannot produce the info. incl. third party information…This court finds that Mr. Sparr’s actions are unacceptable. This matter has been ongoing since 2012. The financial info. must be provided. No extension will be provided to Mr. Sparr.”

3The parties appeared before me regarding the disclosure issue for the last time on April 3, 2019. Mr. Sparr has not paid the amount of $15,000 for costs as per my Order of November 15, 2018. In addition, the evidence supports that Mr. Sparr has not provided all of the ordered disclosure (see Mr. Boyce’s chart dated March 12, 2019 attached to this Endorsement as Appendix “A” that contains the list of outstanding disclosure).

4Mr. Sparr has received a series of warnings from this court about his disclosure obligations and has not followed them on more than one occasion.

5In response, Ms. Downing, seeks to have Mr. Sparr’s pleadings struck pursuant to s. 1(8)(c) of the Family Law Rules for failing to obey court orders.

6There are no major custody and access issues in this proceeding since the parties signed Minutes of Settlement on November 13, 2013, dealing with these issues.

[7]

Legal Principles

In Van v. Palombi, 2017 ONSC 2492, at para. 30, the Divisional Court stated the three-pronged test to be applied when striking pleadings:

a) Is there a triggering event justifying the striking of pleadings?

b) Is it appropriate to strike the pleadings in the circumstances of the case?

c) Are there other remedies in lieu of striking the pleadings that might suffice?

8In Roberts v. Roberts, 2015 ONCA 450, at para. 11-12., the Court of Appeal stated that the duty to disclose financial information is the most basic obligation in family law: it is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of an action, causes delay, disadvantages the opposite party and impacts the administration of justice.

9In Henderson v. McClean, 2015 ONCJ 533 and in Milutinovic v. Milutinovic, 2018, ONSC 3344, the judges ordered the striking of pleadings when one party failed to follow the court’s orders.

10In Manchanda v. Thethi, 2016 ONCA 909, the Court of Appeal upheld the trial judge’s decision to strike pleadings in the face of non-compliance with the number of court orders, including disclosure orders. The Court of Appeal dismissed the appeal since, first, it found that the circumstances were exceptional and egregious and had considered the factors in Kovachis, including that the breach was wilful and that the non-complying party had not disclosed basic documents such tax returns, financial statements, bank account statements, credit card statements, and investment accounts. Secondly, the court stated:

…after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, wilful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts 2015 ONCA 450 at para 11. In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligation. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. 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.

[11]

Analysis

In this case, there have been breaches by Mr. Sparr of this court’s orders, he has been warned that this was his last chance and he did not heed to this court’s orders.

12This court has granted Mr. Sparr the benefit of doubt on more than one occasion.

13When looking at Mr. Sparr’s financial disclosure as a whole, it is clearly lacking.

14I find that Mr. Sparr has been in breach of the following orders as listed in paragraph 22 of Ms. Downing’s Affidavit sworn on May 7, 2018. More specifically:

• Justice Linhares de Sousa’s Order dated August 22, 2014, whereby she ordered Mr. Sparr to disclose a long list of financial information – she granted Ms. Downing leave to bring a motion to have Mr. Starr’s pleadings struck and schedule an uncontested trial should he fail to provide disclosure;
• Justice MacKinnon’s Endorsement dated September 24, 2014, whereby she confirmed that Mr. Sparr had to pay $4,000 in s. 7 expenses and the balance in December 2014;
• Justice Labrosse’s Order dated March 11, 2015, whereby the motion to strike Mr. Sparr’s pleadings was adjourned sine die and he was provided with the warning “this is clearly the Applicant’s last chance to provide the required disclosure failing which the Respondent can seek to bring the motion to strike back before me or another Justice”;
• Justice Labrosse’s Order dated August 18, 2015 whereby he ordered Mr. Sparr to pay costs in the amount of $8,795.29; and
• My Orders dated July 10, 2018 and November 15, 2018 whereby I ordered Mr. Sparr to provide a list of disclosure and the payment of costs in the amount of $15,000.

15Since there are Minutes of Settlement in place, there is no prejudice to the child in question if Mr. Sparr’s pleadings are struck (Burke v. Poitras, 2018 ONCA 1025).

16This court makes orders and expects the parties to follow them. Mr. Sparr has been the beneficiary of warnings from this court and he simply disregards them. The striking of pleadings is an extreme measure. This case calls for this extreme measure to be taken since Mr. Sparr wilfully disregards this court’s orders.

17Given all of the circumstances set out above, I find that there has been a triggering event that justifies striking Sparr’s pleadings. This is particularly so given the overall lack of appropriate disclosure provided by him and his failure to make the payment with respect to the latest cost order. It is therefore appropriate to strike Mr. Sparr’s pleadings.

18Lastly, there remains the examination of other remedies that might be appropriate in lieu of striking pleadings. The primary objective of this court is to decide cases justly. This includes the court enforcing its own 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.

19Given Mr. Sparr’s wilful non-compliance, and the exceptional and egregious circumstances, including that the length of time that Mr. Sparr’s non-compliance has been outstanding, I do not find that any remedies other than striking his pleadings will suffice.

[20]

Conclusion

Consequently, in accordance with Rule 1(8)(c) of the Family Law Rules, I strike Mr. Sparr’s pleadings, including his Application, for failing to follow this court’s orders. He has failed to disclose his financial information and he has failed to pay ordered costs.

21This matter shall proceed to an Uncontested Trial.

22Since I have struck Mr. Sparr’s pleadings, I need not deal with his motion.

[23]

Costs

Ms. Downing is the successful party. If the parties cannot agree as to costs, they may provide my office with brief written submissions on costs not exceeding three pages, exclusive of the Bill of Costs. Ms. Downing will have 10 days from the date of this Endorsement to provide her submissions and Mr. Sparr will have 10 days thereafter to do the same. Ms. Downing will be allowed a brief reply if deemed necessary, of no more than one page which shall be provided within the next 5 days.

Madame Justice M. O’Bonsawin