COURT FILE NO.: FS-20-97324-00
DATE: 20220822
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Khushbubahen A. Parekh, Applicant
AND:
Ashish Parekh, Respondent
BEFORE: The Honourable Justice Mandhane
COUNSEL: Vic Sehdev (as agent), for the Applicant
Supriya Joshi, for the Respondent
HEARD: August 12, 2022 (Via Zoom, video-conference)
ENDORSEMENT
[1] This is a high conflict matter which has resulted in numerous motions, mainly related to parenting time but also in relation to sale of the matrimonial home and disclosure.
[2] There has been a flurry of recent litigation. On June 6, 2022, Dennison J. expanded the Applicant/Mother’s interim parenting time, while Daley J. ordered partition and sale of the matrimonial home on June 8, 2022.
[3] The parties indicate that there may be more motions forthcoming. They were encouraged to write the Regional Senior Justice to request case management of this matter.
[4] The appearance before me relates to the Applicant/Mother’s motion to strike the Respondent/Father’s pleadings on the financial issues for failing to comply with court orders for disclosure and costs.
[5] As a preliminary matter, I granted the Father leave to file his responding materials, which were served three hours late on the Mother. Given the potential outcome of a successful motion to strike, I felt it was important that this motion be decided on the merits. The matter was adjourned briefly to allow the Father to upload his materials to Caselines, and to allow the Mother to upload her reply materials. I reviewed the materials prior to hearing the motion on the merits.
Should the Father’s financial pleadings be struck?
[6] On May 27, 2022, Price J. heard the Mother’s motion to strike. He helpfully set out the background to this matter and the applicable law, and I need not repeat it here.
[7] As a factual matter, Price J. found that: “Despite being served with three requests for information and being ordered to produce the disclosure in two court orders, Mr, Parekh has failed to disclose his financial information as he is required to do.” While noting that striking of pleadings is to be done sparingly, Price J. felt that this was an appropriate case in which to exercise his discretion to strike the financial pleadings. He felt that the Father had been given many chances to comply with his disclosure obligations but had inexplicably failed to do so.
[8] That all being said, given the consent of the parties, Price J. agreed to give the Father one more “clear chance” to comply with his disclosure obligations, imposing a deadline of June 20, 2022. Price J. adjourned the Mother’s motion to strike to today’s date.
[9] The Mother maintains that the Father has not substantively responded to her disclosure requests. She says that, on June 20, 2022 itself, the Father provided an affidavit with “minimal disclosure.” Since then, and as recently as yesterday, the Father has provided further disclosure.
[10] As of the hearing of the motion before me, the parties agree that the following disclosure remains outstanding from the Father:
a. An updated 13.1 Financial Statement;
b. His personal Income Tax Returns for 2018-202;
c. His complete Investor Groups Portfolio Statements;
d. His bank statements from HSBC and TD;
e. His bank statements from two French accounts;
f. His corporate tax return for 2017;
g. His credit applications;
h. His applications for employment;
i. Invoices/receipts to substantiate the expenses he claims in relation to his business; and
j. Vehicle registration(s).
[11] In addition to the disclosure, the Mother says striking of the financial pleadings is necessary because the Father has not complied with the following costs orders:
a. LeMay J. on January 17, 2022, in the amount of $3098.38,
b. Price J. on May 27, 2022, in the amount of $625; and
c. Daley J. on June 9, 2022 in the amount of $3800.
[12] In response, the Father says that he has made good faith efforts to comply with the disclosure ordered by Price J. He has provided banking records, corporate tax returns and company ledgers, and information regarding his previous employment with WSIB. He says that the outstanding disclosure is minimal and forthcoming.
[13] In relation to the outstanding costs awards, the Father admits that he has never paid the $7523.38 in costs awarded against him, and that he is unlikely to be able to pay the substantial costs awarded by Justice Dennison which are due on August 22, 2022. He explains that he does not have the money to pay the costs because he is responsible for the care of the children. He plans to satisfy the costs award after sale of the matrimonial home.
[14] 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).
[15] That said, there is ample, recent case law that supports my inherent jurisdiction to strike pleadings for failure to comply with both disclosure and costs orders: Thomas v. Brereton, 2021 ONSC 5642; 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.
[16] While I am concerned about the Father’s pattern of delaying compliance with court orders, I have to acknowledge that he made a good faith effort to comply with Price J.’s disclosure order such that there is minimal outstanding disclosure remaining. Undoubtedly, the Mother is now in a much better position to quantify her claim for equalization than she was before June 20, 2022.
[17] Therefore, the only question before me is whether I should strike his pleadings based on his continued breach of the costs orders made by this court. To be clear, I do not accept the Father’s position that he does not have the funds to pay costs awarded against him, on the one hand, yet has the funds to engage in high conflict litigation, on the other.
[18] Still, I refuse to strike his financial pleadings for failure to pay costs mainly because there are less drastic remedies available to me. For example, I can impose a strict timeline for payment of the outstanding costs award, impose a financial sanction for failing to make timely payment, and grant the Mother leave to bring back her motion to strike if he fails to provide the outstanding disclosure or pay costs.
Should the sale of the matrimonial home proceed without the Father’s consent?
[19] The Mother notes that the Father has refused to cooperate with the sale of the matrimonial home ordered by Daley J. He asks me to order that the sale proceed without the Father’s consent.
[20] The Father says that the Mother’s request is not properly before this court and that I should require the Mother to file a separate motion for enforcement.
[21] I disagree. Paragraph 2 of Justice Daley’s order grants either party leave to return this matter to court on 48 hours notice for failure to cooperate with any aspect of the sale of the matrimonial home. This matter has been marked by numerous motions on the part of both parties, despite the practice direction that parties be limited to one pre-trial motion each. It is wasteful to require the Mother to file yet another motion, simply to enforce an order already made.
[22] In any event, the Father now says that he is willing to consent to the order sought by the Mother to dispense with his signature on the sale of the matrimonial home and stated on the record that he has abandoned his appeal of Justice Daley’s order. Nonetheless, the Father asks that I allow him to participate in picking an appropriate real estate agent to assist with the sale. He asks for this relief despite being offered the opportunity to help pick the real estate agent previously and declining to cooperate.
[23] The Father’s breach of Daley J.’s order requires some sort of sanction. Therefore, I order that the home be sold without the need for the Father’s signature on any aspect of the sale. He has no right to provide his opinion or consent to picking of the real estate agent to be used on the transaction.
Costs
[24] The Mother was unsuccessful on her motion to strike. However, the Father’s approach to this motion was unreasonable and necessitated the Mother spending unnecessary time and money. For example, he provided quite a bit of financial disclosure late (i.e., after June 20, 2022) and has not paid the costs owing. He has unreasonably withheld his consent to the sale of the matrimonial home.
[25] The Father shall pay the Mother $1000 in costs for today’s appearance. This amount shall be due on September 12, 2022.
Order
[26] The Father’s updated Financial Statement shall be provided on or before August 15, 2022.
[27] All outstanding disclosure ordered by Price J. shall be provided to the Mother on or before August 30, 2022, and/or the Father shall swear an affidavit explaining whether the items exist, his efforts to obtain the same, and the status of any requests to third parties. He is responsible for paying any fees associated with obtaining banking records from Canadian or foreign banks.
[28] The Father shall pay the costs awarded to the Mother by LeMay J., Price J., Daley J., and Dennison J. or before August 22, 2022. The Father shall pay a penalty of $100 per day if the costs are not paid in full by August 22, 2022.
[29] The Father shall pay the Mother $1000 in costs for today’s appearance. This amount shall be due on September 12, 2022. The Father shall pay a penalty of $100 per day if the costs ordered on this appearance not paid in full by September 12, 2022.
[30] If the Father breaches any aspect of para. 26-29 of this endorsement, the Mother shall be entitled to bring a motion to strike on 48 hours notice to the Father.
[31] All previous orders of this court remain in full force and effect.
[32] This matter is adjourned to December 2, 2022 for a trial management conference.
[33] Any further parenting motions shall only be brought after obtaining leave from Dennison J.
[34] I am not seized.
Mandhane J.
DATE: August 12, 2022
COURT FILE NO.: FS-20-97324-00
DATE: 20220812
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Khushbubahen A. Parekh, Applicant
AND:
Ashish Parekh, Respondent
BEFORE: The Honourable Justice Mandhane
COUNSEL: Vic Sehdev (as agent), for the Applicant
Supriya Joshi, for the Respondent
ENDORSEMENT
Mandhane J.
DATE: August 12, 2022