Court File and Parties

COURT FILE NO.: FC-17-2220 DATE: 2020/03/24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anne Marie Cecile Claire Murray, Applicant -and- Suhail Masood Choudhary, Respondent

BEFORE: Justice Pam MacEachern

COUNSEL: Thomas Hunter for the Applicant Respondent Self-Represented

HEARD: February 18, 2020

AMENDED E N D O R S E M E N T

The text of the original judgment was amended on March 24, 2020 and the description of the amendment is appended

1. This Application is scheduled to proceed to trial in Ottawa during the trial sittings that commence May 11, 2020. The trial is scheduled for 21 days. The proceedings involve financial claims by each party arising from their separation in 2017, after ten years of marriage. The parties do not have any children together – there are no claims for custody or access.
2. The Applicant seeks to proceed to trial without the Respondent’s participation, largely because the Respondent has failed to pay any amounts towards a $22,900 cost order made against him on August 15, 2018, for a motion heard on March 29 and April 3, 2018. The Applicant also submits that the Respondent has engaged in a course of conduct that has been vexatious, wasteful, and motivated by the Respondent’s wish to ruin her financially and psychologically.
3. The Applicant has brought a motion seeking to strike the Respondent’s pleadings due to his failure to comply with court orders or, in the alternative, requiring him to post security for costs of $100,000.

Preliminary Matters

4. Two preliminary matters arose at the outset of the motion. The first was that both parties sought to file further affidavits over the bench, and each opposed the other doing so. The second issue was whether the Respondent’s failure to file his Answer in the Continuing Record, as directed by Justice Kershman in his August 22, 2019 order, constitutes the Respondent being in default, and should itself allow the Applicant to proceed on an uncontested basis.
5. On the first issue, both parties sought to introduce further affidavits at the outset of the motion. I refused to allow either to do so.
6. Concerning the Respondent’s material, he did not file any material in response to the Applicant’s motion. He also did not serve any responding material on the Applicant, except for unsworn and unsigned material served on Friday, February 14, 2020. This is despite the timelines set by Justice Summers at the Trial Management Conference on November 1, 2019.
7. At the Trial Management Conference held on November 1, 2019, Justice Summers directed that the Applicant may bring a motion for security for costs and to strike the Respondent’s pleadings; and that the Respondent may bring a contempt motion. Justice Summers directed that each party shall serve and file their motion material by December 16, 2019. Any responding material was due by January 20, 2020. These timelines were set to ensure any motions were resolved well in advance of the May 2020 trial sittings.
8. The Applicant served her motion material and supporting affidavit on December 13, 2019. The Respondent attempted to file a cross-motion for contempt on December 16, 2019, with a supporting affidavit, but this material was rejected because it was not properly served (it was served by email, and not be personal service required for a contempt motion). The court file indicates the Respondent was advised of how he would need to rectify the situation to have his material filed, but he did not return to do so.
9. The Respondent now seeks to file his contempt motion material and apparently a new affidavit in response to the Applicant’s motion. The Respondent’s breach of Justice Summers’ timelines is not merely technical. The Applicant has not had any time to respond to the Respondent’s new responding material. An adjournment to allow time to respond would prejudice the Applicant. A further delay will result in additional expense and jeopardize the court’s ability to deal with these issues well in advance of trial. I declined to accept the Respondent’s responding material on this basis.
10. I have reviewed the Respondent’s cross-motion and his affidavit sworn December 16, 2019, because a copy is in the court file, although not accepted for filing in the Continuing Record. I reviewed these documents to be fair to the Respondent, even though his cross-motion is not before me due to the deficiencies in service. His cross-motion seeks to have the Applicant criminally charged with approximately nine counts of various alleged misconduct (including felony extortion, obstruction of justice, perjury, and fraud), be found in contempt, and that spousal support be recalculated. His affidavit sworn December 16, 2019, relates to these allegations and does not include evidence responding to issues in the Applicant’s motion, except for statements about his income, referenced below.
11. For similar reasons, I also refused to allow the Applicant to file a new affidavit. Her position was that this affidavit related to events that happened the weekend before the motion and related to the substance of the motion by providing further evidence of the Respondent’s failure to comply with court orders. It would be unfair to the Respondent to accept this affidavit without allowing him an opportunity to respond. For that reason, I refused to accept it.
12. The second issue raised related to the Respondent’s Answer. The Respondent states that he filed his Answer on March 16, 2018. The Applicant admits being served with the Answer at that time. She filed a Reply to the Answer on March 27, 2018.
13. For some reason, the Answer is not filed in the Continuing Record. When this matter was before Justice Kershman on August 19, 2019, he ordered the Respondent to send a copy of his Answer to the court to be placed in the Continuing Record. The Respondent has not done so.
14. The Respondent gave various reasons for not doing so, none of which were satisfactory given Justice Kershman’s clear direction. Justice Corthorn also noted the absence of the Answer at the motion heard on March 29 and April 3, 2018. The Respondent states that a copy of the Answer was in the court file, just not filed in the Continuing Record and that he had tried to file a copy, but the court refused it. On questioning, it became clear that the Respondent’s effort to file the Answer was made on Friday, February 14, 2020, immediately before the hearing of this motion, and that he tried to file an Amended Answer, that he had not served, nor obtained leave to amend, rather than a copy of what he states he filed in March 16, 2018.
15. The Applicant argues that the Respondent should not be allowed to file his Answer now, and this matter should proceed uncontested.
16. At the hearing, I allowed the Respondent’s Answer dated March 16, 2018, to be filed. The Applicant’s lawyer provided a copy of the Answer for the Continuing Record. The Applicant is not prejudiced by the Respondent being allowed to provide a copy of his Answer to be included in the Continuing Record – the Applicant has known of the Respondent claims, she was served with the Answer, she filed a Reply to the Answer.
17. Although I accept that the Respondent’s failure to follow the clear direction of Justice Kershman is relevant to the consideration of his conduct in this proceeding, and how that may impact on the determination of the issues below, I do not find that his failure to file the Answer is itself a basis for not allowing him to participate further in this proceeding.

Motion to Strike

18. The Applicant seeks to strike the Respondent’s pleadings due to his failure to comply with court orders, as set out in her factum. For the reasons set out below, I am striking the Respondent’s pleadings, with a provision for the reinstatement of those pleadings, as set out in the order made below.

19. Rule 1(8) of the Family Law Rules[^1] provides that 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.

20. Also, under Rule 2, the primary objective of the court is to decide cases justly; that includes the court enforcing its own orders.

21. The legal principle governing the exercise of judicial discretion to strike a party's pleadings is a three-pronged test as follows[^2]:

    1. Is there a triggering event justifying the striking of pleadings?
    2. Is it appropriate to strike the pleadings in the circumstances of the case?
    3. Are there other remedies in lieu of striking pleadings that might suffice?

22. The power to strike out a party’s pleadings should be used sparingly and only in exceptional cases[^3]. In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice[^4].

23. Concerning the first prong of the test, there has been a triggering event. It is not contested that the Respondent has not paid any amounts towards the outstanding cost order.

24. I do not find that there are other triggering events or that the Respondent has failed to comply with other court orders. The Respondent’s conduct in failing to cooperate in the approval of a previous draft order and failing to provide any other documents upon which he intends to rely at trial by the December 30, 2019 deadline imposed by Justice Summers, is relevant to the third prong of the test, but they do not constitute triggering events. Justice Summers has already imposed consequences for the Respondent’s failure to provide further documents by the December 30, 2019 deadline, which is that none of these documents may be relied on at trial without the permission of the trial judge.

25. Concerning the second prong of the test, the Respondent’s failure to pay any amounts towards the cost order in the intervening 18 months since the order was made, constitutes a willful breach of that court order and therefore constitutes willful and egregious conduct upon which it is appropriate to strike his pleadings. The Respondent’s failure to pay any amounts to the cost order constitutes wilful non-compliance with the cost order. The evidence supports that the Respondent could have made some payments towards those costs but failed to do so.

26. The Respondent’s passport documents that he has travelled extensively since August 15, 2018. His travel includes over 20 trips to such locations as Germany, Latvia, Ukraine, Iceland, the United States, Paris, and Amsterdam. The Respondent does not deny that he has travelled extensively but states he did so very cheaply. The Respondent has not provided any evidence that supports the cost of this travel, nor has he provided any evidence of his current financial circumstances.

27. The Respondent states that some of the trips were to visit family or friends. The Respondent’s position in these proceedings is that he is disabled and unable to work, and therefore he does not attempt to justify the trips as being necessary to pursue employment.

28. I find that the Respondent’s travel was voluntary and provides an evidentiary basis upon which to find that he could have made payments towards the cost award, but has refused, or failed, to do so. Even if he travelled “cheaply,” for example, at $500 per trip, this would total $10,000. Even if he travelled “cheaply” by spending, for example, $500 per month on travel, this would total $9,000 over the 18 months since the August 15, 2018 cost order.

29. I find that the Respondent had at least $500 per month that he could have paid towards the cost order that he spent on other, discretionary expenses, such as travel. This finding is supported by the Respondent’s acknowledgement that his income is equivalent to $41,000 per year in Canadian dollars, made up of disability payments from the Canada Pension Plan and a pension from the United States. He also receives interim spousal support from the Applicant of $931 per month, under Justice Engelking’s order of May 8, 2018, granted before the cost order of August 15, 2018, was made.

30. The third prong of the test requires me to consider if there is any other remedy in lieu of striking pleadings that might suffice. The court is interested in both disposing of cases on their merits and ensuring that respect for the administration of justice is upheld by enforcing compliance with its orders.

31. I do not find that any other order, other than the one I make below, will suffice to accomplish this objective. I have found that the Respondent could have complied with the court order but willfully failed to do so. His willful refusal is consistent with a pattern of conduct in this proceeding where the Respondent has been unresponsive to his obligation to assist the court in fulfilling its primary objective under Rule 2. Rule 2 imposes a duty on parties to do so. The Respondent has repeatedly ignored this duty, including by failing to cooperate in having orders finalized, repeatedly failing to serve and file material following the Rules, and generally acting in a manner that has increased the time and expense of these proceedings.

32. I specifically reject the Respondent’s position that his wilful non-compliance should be excused because of his view that the Applicant will owe him money as a result of his claims in this proceeding, including that she has possession of his valuable comic book collection. The Applicant denies these claims. She has made claims of her own that the Respondent will ultimately owe her additional amounts. These claims have not yet been adjudicated and are not a justification for non-compliance with a court order.

33. The issues set to proceed to trial include the Applicant’s claim for damages for physical and emotional abuse, a restraining order, and repayment of loans she claims to have made to the Respondent; the Respondent’s claim for spousal support, an equalization of net family property, occupation rent related to the matrimonial home, repayment of loans he claims to have made to the Applicant, damages for physical abuse, and return of the dog. There is an issue regarding the validity and interpretation of a contract signed by the parties on their date of marriage. This issue will impact the claims for spousal support, equalization and repayments of any loans owed between the parties.

34. The only order that will suffice in this matter is one which requires the Respondent to pay some amount towards the cost order, in an amount that I find he could have paid, to be permitted to participate in these proceedings. I find this amount is $9,000, representing the $500 per month over 18 months that he could have paid towards the cost order, rather than to discretionary travel expenses. This amount needs to be paid fairly quickly due to the upcoming trial. Also, there must be clear consequences if the Respondent fails to pay this amount and confirmation to the court that the sum has been paid in full. Accordingly, I am striking the Respondent’s pleadings, with the provision that his pleadings shall be reinstated upon him providing proof to the court, to my attention, on or before March 13, 2020, that he has paid the sum of $9,000 to the Applicant by certified cheque, cash, or bank draft.

35. Also, given that this payment would still leave $13,900, plus interest, due on the outstanding costs, I order that the interim spousal support payable under the order of Justice Engelking dated May 8, 2018, is stayed, on an immediate basis, pending a further determination at trial as to whether the Respondent is entitled to spousal support, the quantum of any support entitlement he may have, and whether any support payments he may be entitled to should be set-off against any outstanding costs, or other amounts, owed to the Applicant.

36. In the interim, the deadlines set out in the Trial Scheduling Endorsement order of Justice Summers dated November 1, 2019, shall continue to run and be binding on both parties.

Security for Costs

37. I do not find that this is an appropriate situation for ordering the Respondent to provide security for costs to have his pleadings reinstated. Security for costs is not intended to act as a roadblock to a person who has a genuine claim. This threshold is not a high one.
38. Although the Respondent appears to reside in the United States, and the cost order remains unpaid, I do not find that all of the Respondent’s claims are so devoid of merit that they constitute a “waste of time or a nuisance.” For example, there appears to be a legitimate issue regarding the interpretation and validity of the marriage contract. I am not determining that the Respondent will be successful on his claims, only that some of his claims meet the low threshold required to allow them to proceed in the absence of security for costs, despite the other factors.

Costs

39. If the parties are unable to agree on costs of this motion, the Applicant may file submissions concerning costs on or before March 6, 2020. The Respondent may file submissions concerning costs on or before March 20, 2020. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Issuance of Order

40. Counsel for the Applicant may provide me with a draft order per the above, before February 27, 2020, for my signature.

Dated: March 24, 2020 (signed electronically)

COURT FILE NO.: FC-17-2220 DATE : 2020/03/24 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Anne Marie Cecile Claire Murray, Applicant -and- Suhail Masood Choudhary, Respondent BEFORE: Justice Pam MacEachern COUNSEL: Thomas Hunter for the Applicant Respondent Self-Represented HEARD: February 18, 2020

ENDORSEMENT

Justice Pam MacEachern

Released: March 24, 2020

APPENDIX

March 24, 2020: On page 1, the previous court file number has been replaced by FC-17-2220.

Footnotes

[^1]: Family Law Rules, O. Reg. 114/99 as am [^2]: See Kovachis v. Kovachis, 2013 ONCA 663; Chiaramonte v. Chiaramonte, 2013 ONCA 641; Purcaru v. Purcaru, 2010 ONCA 92; King v. Mongrain (2009), 2009 ONCA 486, 66 R.F.L. (6th) 267 (Ont. C.A.); Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (Ont. C.A.); and Marcoccia v. Marcoccia (2008), 2008 ONCA 866, 60 R.F.L. (6th) 1 (Ont. C.A.) [^3]: Roberts v. Roberts 2015 ONCA 450 [^4]: Purcaru v Purcaru 2010 ONCA 92