Court File and Parties

COURT FILE NO.: FS-21-25098 DATE: 20230302 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maryam Sharif-Razi, Applicant AND: Ali Etemadi, Respondent

BEFORE: Justice Sharon Shore

COUNSEL: Meghann Melito for the Applicant Rebecca Grosz for the Respondent

HEARD: January 26, 2023

Endorsement

[1] The Applicant brought a motion to find the Respondent in breach of court orders for disclosure and for an order striking his pleadings under r. 1(8) of the Family Law Rules, O. Reg. 114/99.

[2] At the end of the motion, I provided my decision to the parties, with reasons to follow. I find that the Respondent continues to be in breach of court orders, and I am striking his Answer. However, he has 30 days from release of this endorsement to correct the breach by providing the outstanding disclosure. If the breach is corrected within the 30 days, he may bring a motion to have his pleadings reinstated.

[3] These are my reasons.

Brief Background

[4] The parties were married on July 27, 2018, and separated just two years later, on September 28, 2020. There is no dispute that this was a short marriage. The issues arising from their separation should have been resolved. However, there has been virtually no progress made in reaching a resolution of the issues due to the Respondent’s failure to provide basic financial disclosure.

[5] To put this in context, it has been almost ten months since the first order for disclosure was made and well over a year since the request for disclosure was served on the Respondent. The Respondent has still not provided some material disclosure.

[6] Proceedings were commenced in August 2021. In November 2021, the Applicant sent a request for disclosure to the Respondent. No disclosure was provided. On April 1, 2022, Sharma J. made an order requiring the Respondent to provide the disclosure requested by the Applicant in November 2021, as well as the disclosure requested by her expert.

[7] The Applicant brought this motion, initially returnable by May 26, 2022, to strike the Respondent’s pleadings for failure to provide disclosure. That motion came before me. The day before the motion, the Respondent requested an adjournment for health reasons. Specifically, the Respondent advised that he was on the wait list for a surgical procedure, and he received an appointment the same day and time as this motion.

[8] I granted the adjournment but ordered costs of $1,500. The Respondent had not provided the disclosure ordered by Sharma J. and had not cooperated in allowing the appraiser into the home. I also struck the Respondent’s affidavit because it was unresponsive to the motion and full of unnecessary, inflammatory and/or irrelevant personal information about the Applicant. Finally, I ordered the Respondent to serve and file a new responding affidavit by June 13th.

[9] The motion returned on June 23rd, before Papageorgiou J. Despite the timelines set out in the May 26th order, the Respondent only served his disclosure the day before the motion. As a result, the Applicant did not have time to review the documents in advance of the motion. Justice Papageorgiou found the Respondent in breach of Sharma J.’s order. The Respondent’s pleadings were not struck but the parties were ordered to attend back before Papageorgiou J. on July 25, 2022, to determine what was still outstanding and whether the appropriate remedy was to strike pleadings. An order was made that the Respondent cannot take any further steps in these proceedings without providing the outstanding disclosure.

[10] The motion returned on September 15, 2022, before Steele J. Counsel for the Respondent requested an adjournment because her client was not well, and she could not get instructions from him. The motion was adjourned once again.

[11] The motion was finally returnable on January 19, 2023, and the Respondent again attended requesting an adjournment. An agent attended for the Respondent advising that the Respondent was in the process of retaining new counsel. The motion was adjourned to January 26, 2023, peremptory on the Respondent. Costs were ordered in the sum of $1,500.

[12] The motion has now returned before me.

The Law and Analysis

[13] The Respondent requested that the court dismiss the Applicant’s order and put into place timelines for him to provide the disclosure that he was ordered to produce 10 months ago. If there are no consequences for failing to adhere to court orders and/or to provide disclosure as required under the Rules, they become meaningless in effect.

[14] Further, the obligation to provide financial disclosure upon the breakdown of a marriage is clear. The obligation begins before the first attendance at court. An order should not be required.

[15] There are several cases in which judges chastise litigants that fail to give timely financial disclosure: see Lalande v. Lalande, 2023 ONCA 68, at para. 5; Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11-12; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13. In addition to the direction and caution provided by the courts, there are several rules set out in the Family Law Rules solely devoted to the obligation to give disclosure on a timely basis, setting out in detail the disclosure to be provided, along with the obligation to update the disclosure on a regular basis.

[16] There have been several amendments to the Family Law Rules in the last few years to ensure that the obligation to give disclosure is absolutely clear to lawyers, litigants, and self-represented litigants alike. Some of these amendments include r. 8.0.1 (automatic orders for disclosure on issuing an application), r.13(3.) (providing details of the disclosure to be provided), and r.13(5.0.2) (requiring certificates of financial disclosure), to name just a few.

[17] Failure to abide by the Rules and to fulfill the obligation to give full and complete financial disclosure 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. In addition, in this case, there have also been several court orders for disclosure that have been largely ignored.

[18] A litigant should not have to bring a motion to get an order requiring a party to do something that has already been ordered (such as a motion for enforcement of a disclosure order). If there has been a breach, the appropriate step is to seek a remedy under r. 1(8): see Varcoe v. Varcoe, 2014 ONSC 328.

[19] So, the question in this case is, what should this court do, faced with a Respondent who has failed to give proper disclosure, failed to adhere to the Rules, and ignored several court orders?

[20] In Ferguson v. Charlton, 2008 ONCJ 1, Spence J. outlined a three-step process for the court to follow when faced with a motion under r. 1(8):

1. Determine whether there is a triggering event.
2. If a triggering event exists, consider whether the court should exercise its discretion, by sanctioning that party.
3. If the court determines it will not exercise its discretion in favour of a non-compliant party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either sub rule 1(8) or sub rule 14(23).

[21] The Respondent does not dispute that there is outstanding disclosure owing to the Applicant. The first part of the test has been satisfied.

[22] In light of the history set out above, there must be sanctions for failing to provide disclosure in these circumstances. The only real question on this motion is the appropriate remedy.

[23] The list of remedies listed in r. 1(8) are not exhaustive.

[24] In making this assessment a court must consider: (1) the disclosure provided; (2) an itemization of the disclosure that the impugned party has failed to provide; (3) whether there has been willful disobedience; (4) proportionality. Owen v. Owen, 2018 ONSC 1083, at para. 12.

[25] Or, as set out in Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, at para. 45, in assessing the most appropriate remedies, a judge should consider the following factors:

a. the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute; b. 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; c. the extensiveness of existing disclosure; d. the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and e. any other relevant factors.

[26] I am also cognizant of the warning set out by the Court of Appeal, that in family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: see Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33, at para. 47 and Manchanda, at paras. 7, 9. Pleadings in a family law proceeding should only be struck in “egregious and exceptional circumstances” which includes willful non-compliance with a court order to provide financial disclosure: Manchanda, at paras. 7, 9.

[27] I reviewed the outstanding disclosure with the parties, as set out in a chart attached to the Applicant’s affidavit. The relevancy of the disclosure was already considered by the judges making the initial orders.

[28] I find the failure to give full disclosure in this case to be egregious. Not only has it been over a year since the first request for disclosure was made, but there have been several court orders and several deadlines made that were ignored. The inability to bring resolution to this short-term marriage is a result of the Respondent’s failure to provide his disclosure and his deliberate breach of court orders. Disclosure is almost always in the control of the parties. Failure to provide the outstanding disclosure as set out in an order can only be regarded as a willful non-compliance with a court order. The Respondent has failed to prove otherwise.

[29] In Costabile v. Costabile, the Ontario Court of Appeal found that a motions court’s decision to strike pleadings with the right to move to reinstate the pleadings on conditions was a sensible solution. I find this to be the appropriate and most fair remedy in this case. It is entirely within the Respondent’s control as to whether he participates in the proceedings.

Costs

[30] The Applicant sought costs of this motion on a full-indemnity basis. I agree.

[31] The Applicant was entirely successful on her motion. The Respondent’s failure to provide his disclosure after over a year since the first request and despite prior court orders was unreasonable. The Applicant should not have been required to bring a motion to enforce a court order for disclosure when the Rules and case law are so clear with regard to the Respondent’s obligation to provide his disclosure.

[32] The Applicant’s costs were $10,300, inclusive of legal fees, disbursements and HST. This is both reasonable and proportionate in these circumstances as it relates to the importance and complexity of the issues. The issues arising from the breakdown of this short marriage cannot be resolved without the outstanding disclosure. It has been approximately 2.5 years since they separated.

[33] The time spent by the Applicant’s lawyer is reasonable. Her fees are reasonable in light of her year of call and experience in family law.

Order

[34] Order to go as follows:

1. The Respondent’s Answer is struck.
2. Within 30 days of the release of this endorsement, the Respondent may bring a motion to have his pleadings reinstated, if he complies with the court orders and the rules regarding disclosure. The onus is on the Respondent to prove that he has complied with all of his disclosure obligations. The motion shall be returnable no more than 45 days from the date of the release of this order.
3. If the Respondent fails to pay his costs (as set out below) and/or fails to bring his motion within 30 days with proof that he has provided all of the outstanding disclosure, the Applicant may proceed to an uncontested trial, with no further notice to the Respondent.
4. The Respondent shall pay the Applicant costs of this motion and the attendance before Steele J., in the sum of $10,000.

Justice Sharon Shore Date: March 2, 2023