COURT FILE NO.: FS-21-99932-00
DATE: 2022 12 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
N.P.
Applicant
- and -
M.P.
Respondent
Belinda Rossi and Hannah Rich, for the Applicants
Valerie Matthews, for the Respondents
HEARD: December 13, 2022 via Zoom Video Conference
ENDORSEMENT
MANDHANE J.
[1] The parties appeared before me on the Applicant/Mother's motion to strike the Respondent/Father's pleadings as they relate to the financial issues only (i.e., support and equalization).
[2] For reasons that follow, I am willing to provide the Father with one final opportunity to comply with my interim order prior to his financial pleadings being struck.
Background
[3] The parties separated on September 17, 2020, and the Mother issued this Application on March 2021.
[4] On August 30, 2021, the Mother was granted leave by Tzimas J. to proceed to an uncontested trial because the Father had failed to file an Answer.
[5] On October 21, 2021, the Mother appeared before me on a motion for interim relief. Despite having failed to participate in the proceedings to that point, the Father attended at the motion but was denied leave to make submissions.
[6] On October 25, 2021, I ordered the Father to provide fulsome financial disclosure, to pay interim child support based on an imputed income of $559,000, to pay an interim monthly lump sum amount of $7,664 in lieu of spousal support, to contribute towards the cost of autism therapy for one of the children, and to pay costs of $45,000: N.P. v. M.P., 2021 ONSC 7101.
[7] The Father did not appeal my interim order, did not seek to have it set aside, nor did he file a motion to have it varied.
[8] The Mother asks me to strike the Father's financial pleadings based on breach of my interim order.
Failure to comply with the interim order
[9] The Mother says that the Father is in breach of my interim order as follows:
a. He has paid only $1,500 towards satisfaction of my $45,000 costs order;
b. He has underpaid child support by $112,697;
c. He has underpaid the amount in lieu of spousal support by $14,583;
d. He has not contributed towards the child's autism therapy; and
e. He has failed to provide adequate disclosure about his largest asset, namely a valuation of his share holdings in Credit Sesame.
[10] The Respondent admits that he is in breach of my interim order but says that this is not an appropriate case in which to strike his financial pleadings. He says that he has provided significant disclosure (including an income report, and a report valuing his stock options), and that that he has paid child support commensurate with his actual income. He asks that the Applicant's motion be dismissed, and that he be granted leave to bring a motion to vary my interim order.
What is the appropriate remedy?
[11] 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).
[12] 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.
[13] The law is clear that striking a pleading is an order of last resort that should be reserved for those cases where no other remedy would suffice: Purcaru, at para 47. Striking pleadings is a remedy 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.
[14] Here, the Father's main argument against striking pleading is that he has shown good faith since my interim order insofar as he has retained counsel, attempted to file his Answer, obtained various valuation reports, provided extensive disclosure, and started to make child support payments.
[15] The fact that he has provided voluminous disclosure over the past year is certainly a factor that weighs against striking his financial pleadings.
[16] In relation to his failure to pay the costs ordered against him, the Father says that he is impecunious and simply unable to do so. He offers the same explanation for his underpayment of child support and the lump sum payment in lieu of spousal support.
[17] The law is clear that claimed impecuniosity is not a defence to an application to strike pleadings: Peerenboom, at para 42; Norris v. Norris, 2019 ONSC 2795 at para. 29. Here, had the Father engaged in this litigation in 2021, he would have had the opportunity to make submissions on the interim motion. I agree with the Applicant that a motion to strike is not the appropriate forum in which to attempt to relitigate my decision to impute income to him on an interim basis.
[18] At a factual level, I reject the Father's claim that he has insufficient funds to meet the terms of my order. Foremost, he admits to driving a Ferrari worth at least $125,000 which was not disclosed on his Financial Statement and which he has not yet sold. He has produced an income report that says that he earns $337,000, yet inexplicably did not pay child support commensurate with this admitted income.
[19] That all being said, I am prepared to give the Father one further opportunity to comply with my interim order prior to striking his financial pleadings. I am willing to do so because of the complexity of the financial issues in this case and the overriding goal of deciding cases justly. Long and short, if possible, I believe that it would assist the trier of fact to receive information from both parties when deciding the Father's income, assets, and liabilities.
Order
[20] On or before February 28, 2023, the Father shall:
a. Provide the Mother with a report outlining the value of his Credit Sesame shares on the Valuation Date;
b. Satisfy all outstanding costs orders;
c. Pursuant to my interim order, pay all child support arrears owing; and
d. Pursuant to my interim order, pay all arrears owing on the lump sum monthly payment in lieu of spousal support.
[21] If the Father does not comply with the requirements set out in paragraph 20 by February 28, 2023, his financial claims shall be struck from his Answer, and he shall have no standing in this court proceeding as it relates to any financial issues, including property, support (child and spousal) or otherwise.
[22] If the Father complies with the requirements set out in paragraph 20 by February 28, 2023, he shall be granted leave to bring an interim motion to vary the amount of support payable. However, I note that he will be required to demonstrate why there are "compelling circumstances" that warrant making such a change: Lonsdale v. Smart, 2018 ONSC 2991 at para. 10.
[23] The parties shall seek leave prior to bringing any further interim motions.
[24] I am not seized of this matter.
Costs
[25] The Mother was successful on this motion and the parties shall endeavour to come to an agreement on costs. If they are unable to do so, they shall both email my assistant Corry Allard (corry.allard@ontario.ca) on or before December 20, 2022 with their costs submissions (max 3 pages, double-spaced), Bill of Costs, and any relevant offers.
Mandhane J.
Released: December 13, 2022
COURT FILE NO.: FS-21-99932-00
DATE: 2022 12 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
N.P.
Applicant
- and -
M.P.
Respondent
REASONS FOR JUDGMENT
Mandhane J.
Released: December 13, 2022