COURT FILE NO.: FS-19-0066
DATE: 20210820
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Alicia Thomas
and
Wendell Brereton
BEFORE: Mandhane J.
COUNSEL: Valois P. Ambrosino, for the Applicant
Self-Represented Respondent
E N D O R S E M E N T
OVERVIEW
The parties were married on September 24, 2004 and separated on March 7, 2019.
In her Application, the Applicant/Mother claims sole decision-making authority and primary residency of the children: P.B. (DOB October 31, 2006) and J.B. (DOB February 5, 2012). The Mother also asks for child support, spousal support, exclusive possession of the matrimonial home, and unequal division of property (with her retaining the entire interest in the matrimonial home).
In his Answer, the Respondent/Father claims sole decision-making authority and primary parenting time of the children. The Respondent/Father also asks for spousal support, exclusive possession of the matrimonial home, and property equalization.
After commencing these proceedings, the parties agreed, on a temporary, without prejudice basis, that the children should reside in the matrimonial home with the Mother. The Father has ad hoc parenting time, as there is no written agreement or set schedule in place.
The Mother seeks an expeditious end to this matter. She brings a motion to strike the Father’s pleadings based on his failure to comply with court orders. She says that the court should grant this extreme remedy without reservation because the Father has flagrantly breached court orders related to disclosure and is unlikely to follow them in the future.
The Father opposes the Mother’s motion. He denies breaching any court orders and, in the alternative, says that it would be unjust to strike his pleadings before hearing his outstanding disclosure motion. He also says that striking his pleadings in relation to the parenting issues would not be in the children’s best interests.
In determining the remedial portion of the Mother’s motion to strike, I must answer the following questions:
a) Is the Father in continued breach of any court orders?
b) If so, what is a just remedy in all the circumstances?
DISPOSITION
- The Father has breached court orders for disclosure and costs, and it is in the interests of justice that the Father’s pleadings be struck in relation to the financial issues. He shall continue to be a full party and have full participation rights in relation to the parenting issues.
ANALYSIS
Has the Father breached a court order?
After the first case conference on March 20, 2020, Price J. ordered both parties to make comprehensive disclosure.
On April 11, 2020, the Father provided a bare bones financial statement and limited disclosure. He refused to provide anything further without the Mother bringing this motion.
On November 26, 2020, the Mother brought a motion to strike the Father’s pleadings and, in the alternative, for summary judgment. On January 26, 2021, on the first stage of the Mother’s motion to strike, Emery J. found that the Father had breached Price J.’s disclosure order and ordered him to provide complete disclosure by March 31, 2021. Emery J. adjourned the remedial portion of the Mother’s motion pending receipt of the outstanding disclosure. Emery J. subsequently ordered the Father to pay the Mother’s costs on the first stage of the motion in the amount of $9500.
I heard the remedy portion of the Mother’s motion on August 17, 2021. While the Mother acknowledges that the Father has provided significant financial disclosure since Emery J.’s order, she says that he has not provided the disclosure necessary to determine his employment income and assets, which is clearly relevant to the support and equalization issues.
While the Father had previously claimed to be unemployed, in his affidavit sworn March 31, 2021, the Father now states that he is self-employed and carrying on business as Brereton-Benjamin Media Group Inc. (the “Business”). Though the Business was incorporated prior to separation, its nature and purpose remain unclear.
The Father has not provided sufficient financial disclosure to allow the Mother to ascertain the assets of the Business on the relevant dates, nor the income he currently derives from it. The Father is in direct breach of Emery J.’s order to provide basic disclosure about the Business such as recent financial statements. I reject the Father’s argument that he is not required to disclose anything more than the Business’s bank account statements. The Mother clearly cannot determine his income with reference to a single bank account, and she is not required to accept his bald assertion that his only income in 2020 was through CERB.
Overall, I conclude that the Father has repeatedly and knowingly breached this Court’s disclosure orders. The Father is also in breach of Emery J.’s costs order. I reject the Father’s assertion that he thought that the $9500 would only be payable after final determination of the Mother’s motions to strike. To the contrary, I find that Emery J. imposed costs as a sanction against the Father’s failure to make proper disclosure in a timely matter as of the date of the motion. Such costs should have been paid forthwith.
What is the appropriate remedy for breach of the March 24, 2021 disclosure order?
Having found the Father to be in continued breach of both the disclosure and costs orders of this court, I must now consider whether to grant the relief sought by the Mother, namely, an order striking the Father’s pleadings.
When considering the appropriate remedy on a motion to strike, I must keep in mind the primary purpose of the procedural rules, which is to deal with cases justly: Family Law Rules, O. Reg. 114/99, Rule 2(2).
I agree with the Mother that there is ample, recent case law that supports my inherent jurisdiction to strike pleadings for failure to comply with both disclosure and costs orders: Peerenboom v. Peerenboom, 2018 ONSC 5796, 2020 ONCA 240; Manchanda v. Thethi, 2016 ONSC 1976; Purcaru v. Purcaru, 2010 ONCA 92. And, while striking pleadings may no longer be considered an extraordinary remedy, it is certainly one that the court must approach with due caution and with full consideration of less drastic remedies: Mullin v. Sherlock, 2018 ONCA 1063 at paras. 44-49.
The Mother reiterates that I must exercise my discretion to strike the Father’s pleadings in their entirety. She says the Father is in flagrant breach of two disclosure orders and has already been afforded the opportunity to remedy his breach. She says that the Father’s failure to provide basic disclosure about his employment income has impeded the timely resolution of the financial issues and has put serious financial strain on her and the children.
Given his outright refusal to pay Emery J.’s costs award, the Mother says that I should be very concerned about his commitment to following future court orders. Indeed, the Mother notes that the Father has a history of flagrantly disregarding court orders. He admits in his sworn Financial Statement to owing the Family Responsibility Office $125,000 in child support arrears in relation to his other children.
The Father says that he made voluminous disclosure in response to Justice Emery’s order, and asks me to grant him another chance to gather the outstanding disclosure. I refuse to do so. The Mother’s motion to strike has been before the Court since December 2020 and has required her to incur the cost of multiple court appearances and numerous briefs. While self-represented litigants like the Father should be granted a fair opportunity to comply with disclosure orders before their pleadings are struck, they cannot be afforded endless opportunities to unduly delay the litigation and engage in information gatekeeping.
I reject the Father’s argument that it would be unjust to strike his pleadings without first hearing his motion for disclosure because the court will be deprived of the benefit of full information when determining the property issues. This argument misses the point. There is no unfairness in dealing with the Mother’s motion in its entirety before addressing the Father’s subsequent motion for relief.
On December 4, 2020, Trimble J. specifically ordered that the Father’s motion not be heard before the Mother’s motion to strike. This makes sense because the Mother’s success could make consideration of the Father’s motion moot. Having been found in breach of two disclosure orders, the Father can hardly expect the court to entertain his disclosure motion without having first brought himself into compliance.
Bearing all this in mind, I am prepared to strike the Father’s pleadings as they relate to the financial issues only. At this point, it is unlikely that the Father will be forthcoming with further disclosure, and I am very concerned that the Mother may have to incur costs in relation to enforcement of any future financial order against the Father. The Mother shall be entitled to pursue her financial claims on an uncontested basis.
I refuse, however, to strike his pleadings in relation to the Father’s parenting claims. There are conflicting factual claims in the parties’ pleadings and there is no parenting order or schedule in place. Courts have repeatedly cautioned against striking portions of pleadings dealing with custody and access (now “parenting”) because courts typically require both parties’ participation to make orders that are truly in the best interests of the children: Peerenboom v. Peerenboom, 2018 ONSC 5796 at para. 17, citing Henderson v. McLean, 2015 ONCJ 533 at paras. 41-42.
In Henderson, supra at para. 43, the court confirmed that, where financial disclosure orders are violated, courts may strike pleadings on financial issues and permit the parenting issues to continue.
ORDER TO GO
The Father shall pay the Mother $9500.00 in satisfaction of costs ordered by Emery J. within 7 days of this order.
The Father’s Answer and all subsequent pleadings and court filings shall be struck in relation to the Mother’s claim for spousal support, child support, exclusive possession of the matrimonial home, and unequal division of property.
The Father’s Answer and all subsequent pleadings and court filings in relation to his claim for spousal support, exclusive possession of the matrimonial home, and property division shall be dismissed.
The Mother’s motion for summary judgment previously scheduled for January 17, 2021 (3 hours) shall be confined to the parenting issues. The Father shall be entitled to participate as a full party. He shall be able to rely on his Answer and subsequent pleadings and court filings in relation to the parenting issues only.
Should the Court decide to dismiss the Mother’s motion for summary judgment, it shall go on to consider whether to grant any of the interim parenting orders sought by the Father in his Notice of Motion.
At the January 17, 2021 appearance, the Court shall also hear the Mother’s motion for security of costs. The Father shall not be entitled to file responding materials or participate on the motion for security of costs.
The Mother is granted leave to schedule an uncontested trial on her financial claims. Costs on this second stage of the Mother’s motion to strike shall be determined by the trial judge hearing the uncontested trial.
I am not seized of the matter.
MANDHANE J.
DATE: August 20, 2021
COURT FILE NO.: FS-19-0066
DATE: 20210820
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Alicia Thomas
and
Wendell Brereton
COUNSEL: Valois P. Ambrosino, for the Applicant
Self-Represented Respondent
ENDORSEMENT
Mandhane J.
DATE: August 20, 2021