Court File and Parties

Newmarket Court File No.: FC-22-998-00 Date: 2023-10-10 Superior Court of Justice – Ontario – Family Court

Re: Mahboubeh Akbari, Applicant -and- Mazda Shamloo, Respondent

Before: The Honourable Madam Justice A.A. Casullo

Counsel: Afras Khattak, for the Applicant Respondent, Self-Represented

Heard: October 4, 2023

Endorsement

Relief Sought and Background

[1] The Applicant wife brings a motion to strike out the Respondent husband’s pleadings and proceed to an uncontested trial.

[2] On April 6, 2023 Daurio J. made an order in respect of parental decision-making responsibility, parenting time, child support, equalization/sale of matrimonial home, and disclosure.

[3] The particulars of the Respondent’s disclosure obligations are as follows:

(a) Within 45 days of the Order, the Respondent was to provide the list of disclosure attached as Schedule “E” to the Applicant’s March 9, 2023 Case Conference Brief. This information was initially requested in the Applicant’s Form 20 Request for Information, dated August 9, 2022. If any document could not be provided, the Respondent was to explain why in an affidavit.

(b) Within 45 days of the Order, the Respondent was to provide all documents he relied upon to contest the validity of the Mahr/Dowry as claimed by the Applicant.

(c) The Respondent was to serve his Form 20: Request for Information no later than May 5, 2023.

[4] The matter was back before Daurio J. on August 10, 2023 for a case conference. The Respondent had not fulfilled the majority of his disclosure obligations. Consequently, Her Honour ordered that, should the Respondent fail to fully comply with the April 6, 2023 Order within 30 days, the Applicant could convert her enforcement and interim spousal support motion, scheduled for today, October 4, 2023 to a motion to strike.

[5] The Respondent was represented by counsel until serving a Notice of Change in Representation on August 27, 2023, indicating that he is representing himself.

[6] The Respondent did not appear today, despite being giving ample notice of today’s motion, including proper notice, and being provided with the Zoom link.

[7] The Respondent did not file an Affidavit on Caselines.

Law and Analysis

[8] Pursuant to Rule 1(8) of the Family Law Rules, O. Reg. 114/99, as am, the court has wide discretion in dealing with a party’s failure to obey an Order. The section reads as follows:

Failure to Obey Order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(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. O. Reg. 322/13, s. 1.

[emphasis added]

[9] The three-pronged test governing the exercise of judicial discretion to strike a party’s pleadings/dismiss a party’s case is well established in the caselaw:

(a) Is there a triggering event justifying the striking of pleadings;

(b) Is it appropriate to strike the pleadings in the circumstances of the case; and

(c) Are there other remedies in lieu of striking pleadings that might suffice? (see: Lamothe v. Ellis, 2021 ONSC 4883, at para 25)

The Triggering Event: The Breaches and Justifications to Strike

[10] The wife summarizes the husband’s breaches of the Court orders as follows:

(a) Failing to fully comply with either Order of Daurio J.

Should the Respondent’s Pleadings Be Struck

[11] The most basic obligation in family law is to disclose financial information. This requirement is immediate and ongoing and should not require court orders: Roberts v. Roberts, 2015 ONCA 450, R.F.L. (7th) 6, at paras. 11-13.

[12] The Family Law Rules provide for strict compliance with court orders. In the event an order is not complied with, rule 1(8) sets out the following sanctions:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers “necessary for a just determination of the matter”, including,

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 provide 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.

[13] The court has jurisdiction, pursuant to rule 1(8.1) of the Family Law Rules, to make any order described in rule 1(8) when a party fails to follow the Rules (barring contempt).

[14] As Quinn J. held in Gordon v. Starr, 2007 35527 (ON SC), at para. 23: “Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences.”

[15] The threshold is high when a party seeks an order striking pleadings. In Purcaru v. Purcaru, 2010 ONCA 92, 265 OAC 121, the Court of Appeal found that 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 underscored the importance of the participation of both parties to the litigation. Despite cautioning that care must be taken in motions to strike where the interests of children are at issue, the Court of Appeal upheld the lower court’s decision to strike the father’s pleadings: at paras. 48 and 76.

[16] In Purcaru, the Court of Appeal held (at para. 49):

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia (2009), 2008 ONCA 866, 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual cases”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.

[17] In Nanchanda v. Theti, 2016 ONCA 909, the Court of Appeal found that the conduct of the appellant had been egregious and exceptional. At para. 13, it stated that:

Rule 1(8) provides the court with the authority to strike claims. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.

[18] In Van v. Palombi, 2017 ONSC 2492, the Divisional Court expressed the well-established, three-part test governing the exercise of judicial discretion to strike a party’s pleadings as follows:

(a) Is there a triggering event justifying the striking of pleadings?

(b) Is it appropriate to strike the pleadings in the circumstances of the case?

(c) Are there other remedies in lieu of striking pleadings that might suffice?

[19] As stated in Manchanda v. Thethi, 2016 ONSC 3667, “[w]ithout enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful.” The Court of Appeal held that striking of pleadings is not reserved for drastic and extreme cases. (2016 ONCA 909).

[20] In Lamothe, the court struck the Respondent’s pleadings due to his chronic and persistent disregard of court orders. Chozik J. considered the following five factors in determining whether it was appropriate to strike the Respondent’s pleadings:

(a) That the Respondent's non-compliance is extensive and persistent;

(b) That his non-compliance is willful in nature;

(c) That the Respondent has not made any reasonable efforts to comply with the court orders and is unable to provide acceptable explanations for the breaches;

(d) That in claiming that he is financially unable to pay the costs awards and minimal child support, the Respondent has not provided adequate financial disclosure to the Applicant or the underlying documentations that would allow her (and the court) to make adequate determinations as to his income and employment; and

(e) That the remedy must not go beyond that which is necessary to express the court's disapproval of the conduct in issue and must be proportionate to the issues in question and the conduct of the Respondent. (see: Lamothe, at para 42.

There is a Triggering Event

[21] I am satisfied that there is a triggering event. To date, the Respondent is in breach of the following:

(a) Disclosure from the April 6, 2023 and August 10, 2023 Orders/Endorsements.

(b) The temporary child support obligation from the April 6, 2023 Order.

(c) Carrying Costs of the Matrimonial home pursuant to the April 6, 2023 Order.

It is Appropriate to Strike the Pleadings

[22] Satisfied that there has been a triggering event, I next turn to whether exceptional circumstances exist such that I should exercise my discretion in favour of the Respondent and not strike his pleadings. In undertaking this task, I should consider and weigh the following factors:

(a) The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633, at para.7);

(b) Whether the disobedience of the orders and rules was wilful in nature (Kovachis v. Kovachis, 2013 ONCA 663, 367 DLR (4th) 189, at para. 3)[^1];

(c) Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Horzempa, at para. 6);

(d) Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 33303 (ON CA), 152 ACWS (3d) 96, at paras. 7-10); and

(e) The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, at para. 3).

Extent and Persistence

[23] Even when given the opportunity to bring himself into compliance with his court-ordered obligations, the Respondent has elected not to do so.

Wilful Non-Compliance

[24] In light of the Respondent’s failure to advise the court why he has not abided by the Orders for close to seven months, I find that his non-compliance is wilful.

No Efforts to Comply

[25] As Raikes J. held in Zantingh v. Zantingh, 2021 ONSC 7959, at para. 40:

Parties in matrimonial litigation have a positive duty to provide complete, accurate, and timely financial disclosure. Non-disclosure and/or partial disclosure that begs more questions than it answers is clearly insufficient and non-compliant. It delays and adds to the cost of litigation. It undermines the objectives of the Family Law Rules and the legislation dealing with family property and support. It is the bane of family litigation: Cunha v. Cunha, 1994 3195, (BC SC), at para. 5.

[26] Without full and complete financial disclosure, the court is unable to arrive at a just and equitable resolution.

[27] I find the Respondent’s efforts to comply to be lacking.

Payor’s Financial Circumstances

[28] By all appearances the Respondent is a successful truck driver, with an imputed income (based upon the bank deposits made into his account in a 25-month period) of $110,621.64 for the purposes of support.

[29] I find that the Respondent has the means to pay his financial obligations.

Proportionate Remedy

[30] I agree with the reasoning of Chappell J. in Levely v. Levely, 2013 ONSC 1026, at para. 12:

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.

[31] The scope of the Respondent’s breaches leads me to conclude that there is no reasonable sanction other than to strike his pleadings. As of August 10, 2023 the matter had been outstanding for 433 days. Giving the Respondent open-ended opportunities to comply with the various Orders will only prolong the forward motion of the litigation.

[32] Upon consideration of the relevant factors, I find there are no special circumstances warranting the exercise of my discretion in favour of the Respondent.

Other Remedies in Lieu of Striking Pleadings

[33] Having determined that I will not exercise my discretion in favour of the Respondent, it is open to me to fashion an appropriate remedy pursuant to subrule 1(8): Ferguson v. Charlton, 2008 ONCJ 1, at para. 64. These remedies include an adjournment to provide the Respondent with more time to effect disclosure (Mullin v. Sherlock, 2018 ONCA 1063); or ordering reinstatement of the Respondent’s pleadings on conditions (Costabile v. Costabile, 2005 CarswellOnt 6909 (C.A.)).

[34] An adjournment is unnecessary, as it appears the Respondent has extracted himself from this litigation.

[35] I believe the same holds true with respect to any opportunity the Respondent might be provided to bring himself into compliance with the outstanding Orders.

Conclusion

[36] Given the history in this matter, including the father’s non-compliance, and now non-participation, there is no other remedy that might suffice, and the Applicant’s motion to strike the Respondent’s pleadings is granted.

Costs

[37] The Applicant seeks costs on a full indemnity basis in the amount of $6,517.28.

[38] Given that the Applicant has been wholly successful on this motion, costs are awarded in the amount requested.

Order to go as follows:

1. Pursuant to rule 1(8)(b)(c) of the Family Law Rules, the Respondent’s pleadings are hereby struck.

2. Uncontested trial scheduled to take place on October 25, 2023 at 9:30 a.m., via Zoom.

Casullo J.

Released: October 10, 2023

[^1]: Rule 1(8) was amended in 2014. While the question of whether a party’s actions have been willful has been removed as a factor to consider, Kovachis remains good law. See for example Wouters v. Wouters, 2018 ONCA 26, at para. 45.