COURT FILE NO.: FC-17-106

DATE: 2021/04/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LYNNE MARIE SOUBLIERE

Applicant

– and –

FRANCOIS CLAUDE LEMAY

Respondent

Michael Rankin, for the Applicant

Ian Vallance, for the Respondent

HEARD: August 18, 2020, by Teleconference

REasons for decision on a temporary motion

SUMMERS J.

Overview

[1] The respondent, Mr. Lemay, brings this motion for an order that the applicant, Ms. Soubliere, comply with the disclosure order of Justice MacEachern dated July 10, 2019 and provide three further items of disclosure. In addition, and based on alleged non-compliance with MacEachern J.’s order, Mr. Lemay asks for an order striking Ms. Soubliere’s pleadings, an order for $5,000 in costs in the event she complies with MacEachern J.’s order prior to the motion or, in the alternative, an order for costs if she does not comply before the motion. He seeks further orders fixing a settlement conference date and directing Ms. Soubliere to remove certain household items within 30 days failing which he may dispose of them.

[2] This motion was originally scheduled for April 23, 2020 and adjourned due to COVID-19 and the suspension of regular court operations. It was eventually rescheduled to July 16, 2020. That appearance was inadvertently struck from the list and the case was rescheduled again to August 2020.

[3] Ms. Soubliere opposes the relief sought saying that she satisfied MacEachern J.’s order on August 7, 2020. Mr. Lemay does not see it the same way and argues that significant disclosure remains outstanding.

[4] For reasons that I will explain, I find that Ms. Soubliere did not satisfy all aspects of MacEachern J.’s order and direct that she produce the remaining disclosure forthwith as set out in detail at the end of these reasons. I dismiss Mr. Lemay’s request to strike Ms. Soubliere’s application and allow his claim that she pay $5,000 in costs. She shall make payment forthwith.

Factual Context

[5] The parties married in 2004 and separated sixteen years later, on June 30, 2016. They have three children ages 10, 15 and 17, all of whom have lived with Mr. Lemay since separation. He is their primary caregiver.

[6] Ms. Soubliere is a lawyer with the Department of Justice, National Security Litigation and Advisory Group. In 2011, she was diagnosed with Chronic Fatigue Syndrome. By 2013, she was unable to work.

[7] When Ms. Soubliere’s disability insurer refused benefits, she brought a lawsuit. In December 2017, she gradually began her return to work. By April 2019, she was working three days a week. In September 2019, the lawsuit settled in her favour.

[8] Mr. Lemay is employed by SNC Lavalin as Vice-President for the National Capital Region.

[9] This application commenced in 2017. The relief sought includes parenting orders, child support, spousal support, and the equalization of net family property. Related issues include income determination and asset tracing.

The Legal Framework

The Rule

[10] Mr. Lemay relies on rule 1(8) of the Family Law Rules[^1] for the orders sought in this motion. The rule authorizes the court to make any order it considers necessary to arrive at a just determination where a party failed to obey an order made in a case, or a related case. Specifically, Mr. Lemay moves under rule 1(8)(c) for an order striking Ms. Soubliere’s application. In the alternative, he moves under subrule (a) for a costs order. The list of orders set out in the rule is not exhaustive and includes,

(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.

The Jurisprudence

[11] An order to strike pleadings is discretionary and the threshold is high. An order of this nature should be a remedy of last resort. In Purcaru v. Purcaru,[^2] the Ontario Court of Appeal upheld the trial judge’s decision to strike the respondent’s pleadings saying the court’s discretion to make such an order should be exercised sparingly, only in exceptional circumstances, and where no other remedy will suffice. The court further spoke of the importance of having both parties participate in the litigation and said that it is through cross-examination and argument, that the adversarial system functions to safeguard against injustice. For this reason, “the adversarial structure of a proceeding should be maintained whenever possible … the objective of a sanction should be compliance with the court order rather than the elimination of a party from the process.”[^3] See also Chiaramonte v. Chiaramonte[^4] where the Court of Appeal described an order striking a party’s pleading as a drastic remedy reserved for exceptional circumstances and said the rule authorizing this remedy must be interpreted in light of the severe consequences of preventing a party from participating further in the case.

[12] The Court of Appeal applied these principles in Kovachis v. Kovachis,[^5] and set aside the motion judge’s order striking pleadings finding that the court failed to consider: (1) the substantive disclosure already made; (2) the absence of evidence that the responding party willfully disobeyed the disclosure order; (3) proportionality as a fundamental principle of all civil proceedings in Ontario, and (4) identify the disclosure still outstanding. Here, I note that r.1(8) was amended on January 1, 2014. The current version of the rule no longer includes the word “willfully”, however, Kovachis remains good law and willfulness is a central and important consideration. See for example Wouters v. Wouters.[^6]

[13] At the same time, our Court of Appeal has been equally clear that full, frank, and timely disclosure is required in family law matters. Disclosure is at the heart of the financial issues; it is not optional. In Roberts v. Roberts,[^7] the court upheld the motion judge’s decision to strike pleadings for repeated non-compliance with disclosure orders and said:

[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

[12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent, and the final adjudication is stalled.

[13] Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.

[14] The Court of Appeal has upheld the use of rule 1(8)(c) to strike pleadings many times in similar circumstances. In Marchanda v. Theti,[^8] the court referred to Roberts[^9] and the 2015 amendments to r.13[^10] as designed to further strengthen a party’s disclosure obligations and upheld the motion judge’s decision to strike saying that is the context in which a party’s non-compliance must be considered. Other instances include Sparr v. Downing[^11] where the court upheld the order striking pleadings after four judges made six different orders saying, “The remedy was not excessive. Financial disclosure in a family law case is – without doubt – one of the most important obligations. It should be automatic without the need for court intervention.” See also Peerenboom v. Peerenboom;[^12] Martin v. Watts;[^13] and Mullin v. Sherlock,[^14] where the Court of Appeal also established the following framework for decisions under rule 1(8):

[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.

The Parties’ Positions

Mr. Lemay

[15] Mr. Lemay argues that Ms. Soubliere’s delay and failure to answer MacEachern’s J.’s order in the face of many follow-up requests from him is part of an overall pattern of litigation conduct that is obstructionist and inflammatory. He makes a series of allegations including: her failure to tell him that she had begun a gradual return to work in December 2017 until they were approaching the settlement conference date in July 2019; her failure to advise him that she settled her insurance lawsuit in September 2019; and the inflammatory letter to his lawyer that she authored and copied to third party legal and accounting professionals with whom Mr. Lemay was associated. He also points to motions he had to bring to obtain consent to renew their son’s passport and secure travel permissions, only to receive Ms. Soubliere’s consent on the eve of court. Further, he alleges that Ms. Soubliere tried to intimidate by messaging him that the public nature of court proceedings could result in aspects of their case becoming known to friends, family, and the media. Mr. Lemay says he regarded her messages as threatening potential harm to his reputation and that of his employer.

Ms. Soubliere

[16] Ms. Soubliere submits that responsibility for her failure to comply with MacEachern J.’s disclosure order rests with her former lawyer and is not, in any way, attributable to willful behaviour on her part. She says she gave the information to her counsel on August 29, 2019, and unbeknownst to her, he did not provide it to Mr. Lemay. She contends her counsel did not keep her updated with respect to the status of her file or copy her with either incoming or outgoing correspondence. She alleges that he was unresponsive and ineffective.

[17] In addition, Ms. Soubliere says she was unwell, vulnerable, and relied on counsel to protect her interests, only to be let down. She contends she was unaware of any disclosure difficulties until July 2, 2020 when she learned from her lawyer that Mr. Lemay had a motion pending before the court. Ms. Soubliere says it was at that point she decided she needed new counsel and submits that it would be punitive for the court to strike her pleadings when the fault was not her own. In short, she submits the court should not visit the sins of the lawyer on the client.

[18] Finally, Ms. Soubliere asserts that she is not ungovernable and denies behaving in a way that might be considered obstructionist.

Discussion

[19] Notwithstanding Mr. Lemay’s failure to have MacEachern J.’s order formally issued and entered, Ms. Soubliere did not raise this concern and focused solely on the merits of the relief sought. I decide the motion accordingly, but nevertheless take the opportunity to address the importance of taking out a formal order. In the text entitled Ontario Courtroom Procedure,[^15] the authors describe a judge’s endorsement as the “informal notation on the disposition of the case.” They further state that if an order is “required for enforcement, or registration, or other purposes, it will be necessary for that informal notation to be incorporated into a formal order or judgment of the court.” See also Chernyakhovsky v. Chernyakhovsky,[^16] where, in the context of a motion to strike, the court said, “Although it is an expense to litigants to take out an order, when one seeks to rely upon a disclosure order, it should be taken out and served on the party to provide disclosure” and Goldhar v. Guarantee Co. of North America,[^17] where Master MacLeod, now R.S.J. MacLeod, discusses the importance of formal orders. Although the decision relates to Rules 59, 76 and 77, of the Rules of Civil Procedure,[^18] I regard his comments as equally applicable to Rule 25 of the Family Law Rules.[^19] At paras. 7-9, he said:

7 … It is important to make the point that an order is in force immediately even under the regular rules … Once the court has ruled on a motion, the decision and the reasons therefore are supposed to be either endorsed on the motion record or in written reasons referred to in an endorsement.

8 Technically the endorsement made under Rule 59 is not the order or judgment but is the authority or fiat to the registrar to issue an order. The formal order is to be drawn up in Form 59A or B as the case may be in compliance with Rule 59 (3) and (4). Unless the presiding judicial officer signs a draft order then the rule sets out a procedure for obtaining approval as to form and content or if the parties cannot agree taking out an appointment to settle the form of the order …

The point of issuing and entering the formal order is to ensure certainty about the terms, to ensure there is a formal record of the order in the court registry and to authenticate the order. Primarily this is so that it may be served on other parties to put them on notice or so that it may be used as authentic in subsequent proceedings. There is of course a body of law about when the presiding officer is functus. In essence this states that the order may be varied or amended by the judge or master at any time before it is issued and entered. Thereafter if it is necessary to change the order, another order setting it aside or varying it must be obtained. This does not mean that orders pronounced but not formalized fail to immediately bind the parties who are on notice of the contents by their presence in court.

9 … It may well be necessary to take out the formal order to take formal enforcement steps but parties who are before the court when the order is made are on notice of the terms of the order from that point on. When the order is taken out, unless subsequently amended, it is supposed to accurately reflect the terms pronounced in court and recorded in the endorsement … The date on the order will be the date it was pronounced and not the date it was issued or entered.

[20] In addition to the above is the importance of a stand-alone order. Here, MacEachern J.’s endorsement states, “Settlement conference held. Order granted as per consent filed.” The underlying consent, in turn, refers to various paragraphs in the parties’ briefs. The result is that three additional documents are needed to know what has been ordered. That said, it is understood that consent orders are often the result of last-minute negotiations outside the courtroom, when time is limited, and the efficiency of shorthand is needed. Moreover, compliance with the order is and should be expected without need of further recourse to the court. All the same, for the reasons set out in Goldhar,[^20] a formal order should be taken out and it should be a stand-alone order.

[21] I turn now to the evidence.

[22] MacEachern J.’s disclosure order dated July 10, 2019 was to be answered by August 31, 2019. The parties were also required to schedule a further settlement conference to be held by January 31, 2020.

[23] There is no dispute that Ms. Soubliere provided partial disclosure on November 29, 2019 when her former counsel sent two volumes of documents. The disclosure package included her MD Management statements, medical reports, pay stubs, her 2018 Income Tax Return, and Notices of Assessment and Re-Assessment. Her counsel’s accompanying cover letter said the remaining disclosure would follow shortly. No explanation was offered for the late delivery despite several follow-up inquiries by Mr. Lemay’s counsel after the August 31 deadline had come and gone. Nothing further was forthcoming from Ms. Soubliere until August 7, 2020.

[24] Ms. Soubliere does not dispute the terms of MacEachern J.’s order as set out at paragraph 10 of Mr. Lemay’s March 6, 2020 affidavit. Based on the terms of the order repeated below and the evidentiary record before me, I find as follows:

Ordered: (i) Statements from each MD Management Account detailing all transactions from January 2010 to December 2016.

These statements were produced to Mr. Lemay on November 29, 2019 although some pages and statements were missing. These were provided on August 7, 2020 along with answers and clarifications sought by Mr. Lemay after reviewing the November disclosure. He now says there may be further questions around one particular transaction. If so, and the inquiries are reasonable, they should be answered promptly, however, such follow-up requests are supplemental to the order. I am satisfied there was substantial compliance in November 2019 with this term of MacEachern J.’s order and it has now been answered in full.

Ordered: (ii) Information regarding Ms. Soubliere’s intention to return to work, specifically,

1. Whether she is back at work;

2. If so, when, where, and what are the arrangements;

3. What are the expectations with respect to returning full-time; and

4. If not, what are her return to work intentions?

Here some context is helpful. Ms. Soubliere’s first lawyer represented her until sometime in late 2018 or early 2019. She retained her second lawyer sometime around April 2019 and released him in early July 2020 when she hired her current counsel. According to Ms. Soubliere, she told her first lawyer that she had begun her return to work in December 2017 and also kept her apprised of the gradual increase in her hours. She said this information was also shared with her next lawyer and should have been provided and communicated to Mr. Lemay then. Nevertheless, he says he did not learn of Ms. Soubliere’s return to work until the settlement conference before MacEachern J., in July 2019 and did not receive the actual details and related medical evidence until August 7, 2020. At that time, Ms. Soubliere provided medical certificates dated January, April and August 2018, February 2019, and a medical report dated May 28, 2019 that said, “If she is able to return to full-time work, this would occur in the next 1 – 2 year range.” In this regard, Ms. Soubliere says she expects her current three-day-per-week schedule will continue indefinitely.

Mr. Lemay takes issue with Ms. Soubliere’s failure to produce an up-to-date medical report and says that by the time he received her disclosure, the most recent medical information was already over a year old. Although Mr. Lemay may wish to have a current report, that is not what the order requires. I am satisfied that Ms. Soubliere has now answered this term of the order.

Ordered: (iii) The details of Ms. Soubliere’s disability insurance litigation status, specifically the experts’ reports and responding experts’ reports.

Ms. Soubliere’s disability litigation settled two months after MacEachern J.’s order. She says she told her lawyer of the settlement but was unaware that he had not shared the information with Mr. Lemay. He says it took his lawyer checking the court file to discover the settlement and then it took until August 2020 to receive copies of the handwritten Minutes of Settlement, the cheque from her insurance company, and proof of deposit.

Mr. Lemay now points to Ms. Soubliere’s failure to provide a copy of the T-1189 tax slip referenced in the Minutes of Settlement and alleged that she is still in breach of the order. He says this document breaks down the settlement year by year from 2015 to 2019 and is, therefore, significant. The relevance of this information was not disputed, and Ms. Soubliere should produce it, however, I am not satisfied that her failure to include it with the August 2020 disclosure package equates to an ongoing breach. The order requires her to disclose the “details” of the litigation status. In my view, the word “details” is too broad to be the foundation for a finding of non-compliance as it relates to a document referenced within a document.

Mr. Lemay also challenges the information that Ms. Soubliere provided in August 2020, regarding the potential of further monies from her insurer under the rehabilitation provisions of her disability coverage that would equal a day-a-week over a two-year period. Mr. Lemay contends that her failure to disclose this aspect of the settlement constitutes a deficiency. I do not agree. Although Ms. Soubliere should have given further detail including the date she first learned of the potential for a further benefit and produced copies of any related correspondence, I am satisfied that what is important is the possibility of a further settlement and that information has been disclosed.

On August 7, 2020, Ms. Soubliere also confirmed that her disability insurer did not obtain any defence medicals.

Ordered: (iv) A list of items that she removed from the home after separation.

(v) A list of items she wishes to keep from the house.

The disclosure package sent in November 2019 included Ms. Soubliere’s lists of items, however, Mr. Lemay alleges they were inaccurate. He says her lists included items that he bought after separation as well as items he said she had already removed from the home. Ms. Soubliere maintains her lists were responsive. In reply evidence, Mr. Lemay introduced yet another list itemizing the pieces he claims she had already removed from the house including twenty-seven paintings. Based on the evidence before the court, I have no way of assessing the veracity of the parties’ conflicting lists. I am satisfied that this aspect of MacEachern J.’s order has been satisfied. Ms. Soubliere was obliged to provide lists and she did so.

With respect to the removal of the items where the parties are in agreement, they resolved that issue prior to the motion and fixed September 9, 2020 as the date for her to retrieve them. I make that order.

Ordered: (vi) All correspondence from each of her banks or financial institutions, listing all accounts or instruments held by her solely or jointly with another person from the date of separation to present, and any bank statements from December 1, 2016 to present for any accounts or instruments listed in the letters from her banks and financial institutions.

Ms. Soubliere delivered two letters on August 7, 2020 – one from RBC dated August 27, 2019 and one from MD Management dated August 2020. She says she gave the RBC letter to her lawyer on August 29, 2019 and does not understand why it was not provided to Mr. Lemay. Now that he has the letter, Mr. Lemay observes there is no mention of an account that appears on Ms. Soubliere’s financial statement. He says she also has yet to produce the bank statements that were ordered. Ms. Soubliere’s counsel explained that the missing account number relates to the new account she set up after the August 27, 2019 letter to receive her insurance settlement proceeds. However, counsel’s explanation describing her failure to produce bank statements as an oversight was less convincing. Considering the circumstances including nature of the allegations, her position that all documents had previously been provided to her then lawyer, and the gravity of the relief sought, I am not persuaded that Ms. Soubliere’s failure to produce these statements in August was a simple memory lapse or mistake. She is to deliver them to Mr. Lemay forthwith.

Ordered: (vii) Copies of all receipts for expenses that she charged to the joint Mastercard after the date of separation.

Mr. Lemay did not dispute receiving a series of receipts in March 2017, but said the disclosure was inadequate insofar as Ms. Soubliere did not produce all receipts for all charges. Mr. Lemay then assisted by preparing a list of the transactions for which he sought receipts and to his dissatisfaction, she sent the same documents a second time. He says Ms. Soubliere’s answer was deficient then, is deficient now, and urges the court to see her actions as evidence of ongoing determination to avoid disclosure. Ms. Soubliere denies this allegation and says she cannot supply what she does not have. The court cannot assess the sufficiency of the disclosure made. Neither party provided copies of the receipts provided to allow the court to compare the productions made to the list prepared by Mr. Lemay.

Ordered: (viii) Ms. Soubliere’s 2018 Income Tax Return, Notice of Assessment, and any Notice of Reassessment.

According to Mr. Lemay, the tax documents provided in November 2019 were incomplete. Ms. Soubliere says the copies were, indeed, complete, albeit some pages were out of order. She sent another copy on August 7, 2020. There is compliance with this term of the order.

Ordered: (ix) Her most recent pay slips.

The November 2019 disclosure package included pay stubs for the period between late June and August 7, 2019. Early in 2020, Mr. Lemay followed up asking for current income information including Ms. Soubliere’s 2019 T-4. Although provided in August 2020, she said the information was inaccurate due to the ongoing difficulties with the Phoenix pay system and she would supply the corrected version of her T-4 upon receipt.

Mr. Lemay submits that point of MacEachern J.’s order is to ensure evidence of current income. Nevertheless, the order states that Ms. Soubliere is to produce her most recent pay slips. By delivering those, she complied with the letter of the order. However, considering the unreliable nature of her income documents, a letter from her employer confirming annual salary would have been in keeping with the spirit of the order and her obligation to provide ongoing disclosure.

Ordered: (x) An up-to-date sworn Financial Statement.

According to Ms. Soubliere, she prepared an updated draft Financial Statement for her previous lawyer prior to the July 2019 settlement conference and does not know why it was not before the court at that appearance. She has now delivered an updated statement and although Mr. Lemay considers it wanting, and questions its veracity, that is a separate issue. I am satisfied that Ms. Soubliere has answered this part of the order.

Ordered: (xi) Information regarding her current living accommodations and income, including

1. Her current address;

2. How long she has resided there;

3. If any other persons reside there; and

4. Sharing of expenses.

Except for her address, Ms. Soubliere answered this aspect of the order on August 7, 2020. She contends that as an employee of the Department of Justice, National Security, Litigation and Advisory Group, she is prohibited by law from disclosing her address and, if necessary, she will provide a letter from her employer. As the children’s residential parent, Mr. Lemay does not accept her refusal to advise of her address and seeks proof from her employer. In my view, Ms. Soubliere’s position begs the question why she consented to this disclosure request in the first instance. It also raises a question around her failure to produce an employee manual or internal policy statement corroborating this alleged restriction.

Ordered: (xii) Documentary proof of her income, job category, and level with the Federal Government from 2018 to date.

Subject to the uncertainty around her income noted above, Ms. Soubliere produced the other information on August 7, 2020, as required.

Ordered: (xiii) That Ms. Soubliere advise of her position in relation to additional issues raised and orders sought by Mr. Lemay.

Despite Mr. Lemay’s dissatisfaction with the positions taken by Ms. Soubliere, she provided this information as required.

[25] Although not ordered by MacEachern J., Mr. Lemay seeks three further disclosure items. His affidavit reiterates requests made in correspondence to Ms. Soubliere’s counsel for: a copy of Ms. Soubliere’s February 28, 2018 Settlement Conference Brief in the insurance litigation; the matrimonial home appraisal obtained in June 2018; and confirmation of her intention to challenge the marriage contract and, if so, the provisions in dispute. Ms. Soubliere replied on August 7, 2020. She said the Settlement Conference Brief was no longer relevant, confirmed her intention to challenge the marriage contract, and enclosed a copy of the house appraisal.

Did Ms. Soubliere Disobey MacEachern J.’s Order?

[26] The answer to this question is yes. She disobeyed the order although by the time this motion was heard she was in substantial compliance. There is no question that Ms. Soubliere did not meet her obligations under the order before the August 31, 2019 deadline or for many months thereafter. Moreover, there are still items of disclosure that are outstanding including bank statements from the date of separation to the current date, confirmation of her address and her cooperation to schedule a further settlement conference. The relevance of the disclosure was not challenged, and the information not yet provided is to be produced by Ms. Soubliere forthwith subject to proof from her employer that she is, indeed, prohibited from sharing her residential address with Mr. Lemay.

Was Ms. Soubliere’s Failure to Comply Willful?

[27] The answer here is less clear, however, I find, on the balance of probabilities, that Ms. Soubliere was willful in her non-compliance.

[28] On one hand, there is evidence to support Ms. Soubliere’s contention that her former lawyer was less than attentive to the demands of her file. The evidence includes:

• The date of the letter prepared by RBC is August 27, 2019. This indicates that Ms. Soubliere had, indeed, contacted the bank to request the information she was ordered to obtain. This letter was not included in the November 2019 disclosure package, however, what is not known is whether she provided it to her counsel as she said she did;

• Mr. Lemay also said that Ms. Soubliere’s former counsel was less than responsive at times, and pointed to instances where correspondence either was left unanswered or was only answered in part;

• The absence of any acknowledgement or explanation for late disclosure or request for an extension of time despite several efforts by Mr. Lemay’s counsel to obtain information short of bringing a motion;

• Counsel’s failure to answer, or even acknowledge, the request from Ms. Soubliere’s current lawyer for a complete copy of her electronic file prior to the motion despite several weeks’ notice.

[29] On the other hand, I find there is more persuasive evidence that Ms. Soubliere was willful, or perhaps willful by omission, and should bear responsibility for her non-compliance. Here I consider that:

• Ms. Soubliere is a sophisticated litigant. She is a lawyer with many years at the bar, has the training to understand the process, the knowledge of the professional obligations that lawyers have to their clients to keep them informed and be responsive to their communications, not to mention her recent experience as a litigant in her insurance action. Here, Ms. Soubliere says that not only had her counsel been unresponsive to Mr. Lemay’s lawyer, he was also unresponsive to her communications yet she does not say what, if any, steps she took to address this concern over his fifteen month retainer. In this regard, I also note that a second settlement conference was to take place before January 31, 2020. Ms. Soubliere does not address why that date was allowed to come and go without questioning her counsel with respect to the status of her case;

• There were text messages from Mr. Lemay to Ms. Soubliere that include references to her outstanding disclosure that should have caused her to follow-up with her counsel if, indeed, she had provided him with the information;

• Her failure to produce evidence to support her statement that she delivered her disclosure to counsel on August 29, 2019. Although he failed to produce her electronic file before the motion, I am of the view that Ms. Soubliere could have produced copies of emails sent and phone calls made from her own records;

• Ms. Soubliere’s failure to say what steps she took, if any, or intends to take, to hold her former lawyer accountable for what she alleges was ineffective representation;

• Although she has been living with health challenges for several years now, I do not accept that she was as dependant on counsel as she suggests. Ms. Soubliere has been well enough to work three days a week at a demanding job since April 2019 and well enough to attend to the client involvement needed in her insurance litigation. I do not accept that she was too unwell, or was too vulnerable, to be at least minimally attentive to her family law litigation and ask even basic questions around his alleged lack of communication with her, the failure to return to a settlement conference before the end of January 2020, and the messages from Mr. Lemay about outstanding disclosure.

[30] Notwithstanding my conclusion that Ms. Soubliere’s non-compliance was willful, is not an exceptional nor egregious example of disobedience that calls for an order striking pleadings. As that courts have said many times, that is a remedy of last resort, not first. Moreover, and considering all the circumstances including that Ms. Soubliere had largely satisfied the disclosure order prior to the motion, and that this is not a situation involving repeated breach of multiple orders, I conclude that a financial penalty in the form of a costs order is sufficient to promote compliance as the ultimate goal of rule 1(8).[^21]

[31] I summarize my order as follows:

1. Mr. Lemay’s request for an order striking Ms. Soubliere’s pleadings is dismissed;

2. Ms. Soubliere shall pay $5,000 to Mr. Lemay forthwith for non-compliance with the order of Justice MacEachern dated July 10, 2019;

3. Ms. Soubliere shall forthwith produce copies of her bank statements for the period between separation and the current date;

4. Ms. Soubliere shall forthwith provide confirmation of her residential address in the absence of proof from her employer that she is prohibited from doing so; and

5. Ms. Soubliere shall forthwith provide reliable evidence of her 2019, 2020 and current income.

Justice D. Summers

Date: April 12, 2021

COURT FILE NO.: FC-17-106

DATE: 2021/04/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LYNNE MARIE SOUBLIERE

Applicant

– and –

FRANCOIS CLAUDE LEMAY

Respondent

REASONS FOR decision

on a temporary motion

D. SUMMERS J.

Released: April 12, 2021

[^1]: O. Reg. 114/99.

[^2]: 2010 ONCA 92, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47.

[^3]: Ibid, at para. 49.

[^4]: 2013 ONCA 641, 36 R.F.L.(7th) 11 (Ont. C.A.), at para. 32.

[^5]: 2013 ONCA 663, 36 R.F.L. (7th) 1 (Ont. C.A.), at para. 3.

[^6]: 2018 ONCA 26.

[^7]: 2015 ONCA 450, at paras. 11-13.

[^8]: 2016 ONCA 909, 84 R.F.L. (7d) 374 (Ont. C.A.), at para. 13, leave to appeal refused, [2017] S.C.C.A. No. 29 (S.C.C.).

[^9]: Supra, at note 7.

[^10]: O. Reg. 114/99.

[^11]: 2020 ONCA 793, at para. 4.

[^12]: 2020 ONCA 240.

[^13]: 2020 ONCA 406.

[^14]: 2018 ONCA 1063, paras. 44 and 45.

[^15]: Michelle Fuerst and Mary Anne Sanderson, Fourth Edition, LexisNexis Canada Inc. 2016, at p. 1232.

[^16]: 2995 6048 (ON SC), paras. 6-8.

[^17]: [2006] O.J. No. 4643, 153 A.C.W.S. (3d) 970.

[^18]: R.R.O. 1990. Reg. 194.

[^19]: Supra, at note 1.

[^20]: Supra, note 11.

[^21]: Supra, note 1.