Court File and Parties

COURT FILE NO.: FS-23,876/22 DATE: 2023-10-19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Polack v. Larabie

BEFORE: The Honourable Madam Justice K.E. Cullin

COUNSEL: Trevor Kestle, for the Applicant Peter Larabie, Self-Represented Respondent

HEARD: October 5, 2023

Endorsement on Motion

Overview of the Motion

1This matter appeared before me in motions court.

2On June 29, 2023, Justice Cornell granted the applicant’s motion to strike the respondent’s pleadings. The respondent has brought a motion seeking, among other things, to set aside this Order and to release his share of the proceeds from the sale of the matrimonial home. The respondent also raises issues about the adequacy of the applicant’s financial disclosure. The applicant has brought a cross-motion seeking to dismiss the respondent’s motion and to strike his motion materials from the record.

Preliminary Request - Adjournment

3The respondent raised a preliminary request to adjourn the applicant’s motion. He submitted that he was only served with the applicant’s materials on Monday. He also submitted that he was recently approved for Legal Aid assistance and that he wanted to consult counsel prior to responding to the applicant’s motion.

4There was a discussion about how to proceed. The respondent was advised that, given the nature of the applicant’s motion, it had to be heard together with his motion. The court also expressed concern about proceeding with either motion if he was in the process of seeking legal advice. He was advised that the court was prepared to grant his adjournment, but that both motions would be adjourned.

5The respondent wanted to proceed with his motion. He was asked whether he was satisfied that the evidence he had filed in support of his motion responded to the issues raised in the applicant’s response as well as the applicant’s motion. He said that he was. The motions proceeded.

Overview of the Proceeding

6Very briefly by way of background, the parties have been separated since October 29, 2020. They were married on October 18, 2008. They lived together prior to their marriage. There is some debate about when they started living together, however it does not appear to significantly impact any of the legal issues before the court.

7The parties have no children. The issues in dispute before the court are spousal support and equalization. Of these, the issue of spousal support is the most contentious.

8Shortly after the parties’ separation, they sold the matrimonial home. The proceeds of sale were held in trust while they attempted to resolve their disputed issues. By April 2022, it became apparent that a negotiated resolution was not going to be possible, and the applicant wife commenced these proceedings.

9A case conference has been conducted. Leave to conduct questioning was granted. Leave to bring motions was granted following the completion of questioning. The respondent has been questioned. The applicant has not been questioned. The respondent alleges that the applicant has cancelled questioning however the only documentary evidence before me indicates that the applicant attended for questioning and the respondent and his counsel were not present.

10The applicant brought a motion to strike the respondent’s pleadings due to the respondent’s failure to fulfill undertakings given at his questioning. While many of the undertakings were fulfilled, it is apparent that some were not. In the face of the unfulfilled undertakings and the respondent’s failure to attend to address the motion, Justice Cornell struck the respondent’s pleadings. He also granted the applicant’s motion to release her one-half of the proceeds of sale of the matrimonial home; the respondent’s funds were paid into court. It is this order that the respondent seeks to set aside.

The Law

11The striking of a party’s pleadings for non-compliance with court orders is an exceptional remedy. It should only be granted when no other remedy would be sufficient to respond to a party’s non-compliance. See: Chiaramonte v. Chiaramonte, 2013 ONCA 641, at paras. 31-33.

12In determining whether to grant a request to strike pleadings, the court must balance several interests. Sanfilippo J. noted in Hill v. Gregory, 2018 ONSC 6847, at para. 41:

FLR 1 (8) provides an operational, procedural mechanism by which the Court’s inherent jurisdiction to control its process is implemented in case of breach of court orders. These consequences, focusing in this Motion on the dismissal or stay of the Husband’s Motion to Change, require a balancing between competing interests: the Husband’s access to the Court to be heard on material changes in circumstances that he submits have occurred since the Final Order and would support a reduction in the obligations imposed by the Final Order; and the Wife’s entitlement to a remedy arising from the real and substantial harm caused to her by the Husband’s failure to provide her the financial support and entitlements mandated by the Court Orders. There is also, as noted, the overarching consideration of ensuring respect for the administration of justice through compliance with Court Orders.

13When faced with a request to set aside an order striking pleadings arising from a party’s failure to fulfill their disclosure obligations, the court must consider the totality of circumstances surrounding the order including: the reasons for the party’s failure to provide disclosure; the nature and extent of the disclosure provided, if any; the party’s participation in the proceeding and compliance with other orders; and, the impact of permitting the order to stand on the party and the proceedings. See: Marcoccia v. Marcoccia, 2008 ONCA 866; Kovachis v. Kovachis, 2013 ONCA 663; Wouters v Wouters, 2018 ONCA 26.

Analysis

Service of the Motion to Strike

14The respondent submits that the order striking his pleadings should be set aside because he was not served with the applicant’s motion record. The applicant submits that the respondent was served by regular mail at the address in his notice of change in representation, which is the only address he has provided for service.

15Service of the respondent has been a challenge. In his notice of change in representation, served January 31, 2023 (but incorrectly dated January 31, 2022), he provided both a mailing address and an email address. He has since advised counsel for the applicant and the court that he cannot receive “e-communications”. He alleges that he has been “cyberhacked” and that he cannot communicate by email while it is being investigated. He has provided no independent evidence corroborating the “hack” or the investigation. His inability to receive email correspondence coincided with the service by email of the applicant’s first motion record on February 27, 2023.

16The respondent alleges that he was not served with the motion to strike his pleadings, or a prior motion to compel him to fulfill his outstanding undertakings. He acknowledged receiving a copy of an order dated March 30, 2023 compelling him to fulfill undertakings. The motion to strike his pleadings was sent by mail to the same address at which he received that order. The motion record was mailed on June 8, 2023 and the motion was returnable on June 29, 2023.

17When asked during argument whether he lived at the address where he was served, the respondent provided inconsistent answers.

18In my view, it is the respondent’s obligation to provide an address for service at which he can reliably receive materials that are mailed or emailed to him. If the address that he has provided is not his home address, then it is his responsibility to arrange for the prompt delivery to him of materials received at that address. If the respondent wishes to receive materials without delay, then he should provide an email address. There is no apparent reason that he cannot create an email address that is solely used to serve and receive materials pertaining to his family law proceeding. I note that he connected to motions court by Zoom using a cellphone. He can use a cellphone to receive and send email if he chooses, or he can attend at one of the many public libraries in Sudbury which provide computer, internet, and Wi-Fi access.

19I do not accept the respondent’s evidence that he did not receive the applicant’s motion to strike his pleadings. The motion record was properly served at the mailing address that was provided by the respondent in his notice of change in representation. The respondent has received other materials mailed to that address. In my view, it is suspiciously convenient that the respondent stopped being able to receive email when he realized that the applicant would be serving materials on him by email. It is also suspiciously convenient that the respondent receives court orders at his mailing address, but all other pleadings seem to mysteriously disappear.

20I do not accept failure of service as a ground to set aside the order to strike the respondent’s pleadings.

The Respondent’s Fulfillment of Undertakings

21The respondent submits that he has failed to fulfill undertakings which were inappropriate and irrelevant. The applicant submits that the undertakings were given with no objections at questioning by the respondent’s counsel and that he has an obligation to fulfill them.

22I would first note that the respondent did fulfill a substantial number of the undertakings which were given at his questioning. The respondent gave 43 undertakings at his questioning and, at the time of the motion to strike, 31 of them had been fulfilled and 12 remained outstanding.

23The respondent served undertakings on the applicant’s counsel on May 12, 2023, accompanied by a lengthy cover letter explaining why the remaining undertakings remained unfulfilled. While his position with respect to some of the undertakings was unreasonable, there were others for which he offered a viable explanation regarding his inability to fulfill them. A copy of this cover letter was not before Justice Cornell as it was not included in the evidence filed by the applicant in support of the motion to strike.

24The respondent served his undertakings in response to my Order dated March 30, 2023. His response demonstrates a willingness (albeit reluctant) to comply with the orders of the court and to provide requested disclosure. In my view, his compliance supports his request for relief from the order striking his pleadings.

The Respondent’s Participation in the Proceeding

25The respondent’s participation in this proceeding has, overall, been responsive. He was served with the application on April 14, 2022. He retained counsel and served an Answer, Certificate of Financial Disclosure, and Form 13.1 Financial Statement on June 29, 2022. He participated in a case conference on October 18, 2022. He attended for questioning on November 16, 2022.

26The respondent’s difficulties began when he started to represent himself on January 31, 2023. Shortly after, he served a series of accusatory requests to admit on the applicant. At the heart of the requests to admit is the suggestion that the applicant has failed to provide complete financial disclosure. The respondent alleges that the applicant is earning income which she has failed to disclose in her sworn financial statement. He also alleges that the applicant has failed to declare a contingent interest in a cottage on Lake Panache (also known as Lake Penage) which is owned by the applicant’s father.

27It is true that the applicant has failed to particularize income that she receives from sources other than her employer and that her description of that income as “nominal” in her affidavit materials is debatable. It is also true that the applicant appears to have regular use of a cottage owned by her father and that she and the respondent appear to have financially contributed to the maintenance and upkeep of that cottage during their marriage. Unfortunately, rather than putting this information forward in a straightforward and factual manner for the court’s consideration, the respondent has elected to make allegations of fraud and other sinister and criminal conduct by the applicant and her counsel.

28Reasonable people can disagree about the significance of evidence and the conclusions that can be drawn from it. Unreasonable people file shouting affidavits, hurl accusations, and make veiled threats. If the respondent wants to participate in this proceeding, he needs to learn the difference. He cannot expect the court to give serious consideration to his position when he surrounds it with hundreds of pages of angry declarations about the injustice being perpetrated on him by the applicant and her counsel.

29Overall, the respondent has demonstrated a willingness to participate in the proceeding that favours his request for relief from the order striking his pleadings. The tone of his recent pleadings raises an issue about whether any conditions should be attached to that relief.

Impact of the Order on the Parties and the Proceedings

30In Purcaru v. Purcaru, 2010 ONCA 92, at para. 49, the Court of Appeal observed:

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.

31In the context of cases involving claims for support, the court in Purcaru, at para. 48, “This is particularly so in a family law case where the resulting judgment may provide for continuing obligations that can only be varied on proof of a change in circumstances. A change in circumstances may be difficult to establish if the initial judgment is based on incorrect assumptions, thus perpetuating injustice.”

32The applicant is advancing a claim for spousal support based upon her evidence that there is a significant disparity between her income and that of the respondent. On the evidence before me, the respondent has raised a legitimate issue about the extent of that disparity.

33The applicant is also advancing a claim for equalization on the basis that a substantial payment is owing to her. The respondent has asked legitimate questions about the applicant’s decision not to include some assets in her sworn financial statement which would impact the payment, if any, that is owed.

34These are issues which should be explored on a complete record and with fulsome submissions from the parties if the court is to ensure a just outcome. This favours the respondent’s request for relief from the order to strike his pleadings.

Disposition

Relief from Order Striking Pleadings

35On balance, I find that the circumstances support giving the respondent the opportunity to participate as a party to this proceeding. The nature and extent of that involvement, however, is going to depend on the respondent demonstrating that he is prepared to complete his undertakings and to file materials that appropriately address the issues in dispute. I am going to set conditions to be met and a date for this matter to return before me to review the status of those conditions, after which I will rule on the nature and extent of the respondent’s participation in this proceeding going forward.

Outstanding Undertakings

36The applicant submits that the following undertakings are outstanding:

1. To file his 2020 and 2021 income tax returns and to provide copies of his T1 General returns, schedules, and any supporting documentation filed with his return, as well as copies of his Notices of Assessment once received.
2. To provide a copy of his last paystub from Vale.
3. To provide a copy of his OHIP decoded summary and a copy of the letter requesting it.
4. To provide a complete copy of his Manulife benefits booklet.
5. To submit paperwork to Manulife to transition to long-term disability.
6. To provide a Form 13.1 Financial Statement.
7. To provide a bank statement showing the balance of his TD chequing account on the date of separation.
8. To provide a bank statement confirming the value of his RRSP on the date of separation, as well as its current balance, from the Bank of Montreal.
9. To provide a statement confirming the balance of his TD Visa on the date of separation.
10. To provide a statement confirming the date that the BMO line of credit was incurred as well as its balance on the date of separation.
11. To provide a statement for the Northern Credit Union Collabria Visa on the date of separation.
12. To provide confirmation of any debts being claimed on the date of marriage.

37I will address each of these undertakings in turn.

1. 2020 and 2021 Tax Returns and Notices of Assessment

38I do not accept the respondent’s submission that it is discriminatory to ask him to file his income tax returns because he is a registered indigenous person.

39First, he gave an undertaking at his questioning to file his income tax returns for 2020 and 2021 and to provide copies of those filed returns and the related Notices of Assessment. If he had an objection to filing his returns, he could have raised it at his questioning. He did not.

40More important, however, is the fact that the respondent filed Notices of Assessment with his sworn Financial Statement for the years 2011 to 2019 which means, of course, that he filed income tax returns in those years. In 2020 and 2021, he worked at Vale (where he also worked prior to the separation); at Vale, he earned off-reserve income which is not tax-exempt. It is difficult not to view his objection to fulfilling this objection as obstructionist, and it undermines the credibility of other legitimate issues that he raises in his arguments.

41The respondent will be ordered to fulfill this undertaking.

2. Last paystub from Vale

42The respondent submits that he cannot provide his last paystub as he no longer has access to his online payroll account with Vale. He appears to have made no effort to contact the HR department at Vale to request this information, nor does he provide any evidence to explain why he would be unable to do so.

43I am going to make an order pursuant to s. 42(1) of the Family Law Act requiring Vale to provide a return of the respondent’s wages and other remuneration for the period from January 1, 2022 to the date of the order. This information, when received, will satisfy this undertaking.

3. OHIP Decoded Summary

44The respondent submits that he does not know how to obtain an OHIP decoded summary. As self-represented party who was represented by counsel when this undertaking was given, I accept this as reasonable.

45I am going to make an order requiring the respondent to sign an authorization and direction to be provided by counsel for the applicant permitting them to request a copy of his OHIP decoded summary. He will also be required to provide a legible photocopy of his OHIP card.

4. Manulife Benefits Booklet

46The respondent submits that he has provided correspondence confirming that the applicant is not eligible for benefits under the Manulife plan following the separation. He also submits that he is no longer eligible for benefits under the Manulife plan and that his health benefits are currently being provided by the federal government due to his indigenous status.

47The respondent has provided no evidence from Manulife confirming his eligibility status under its benefits plan. He will be ordered to provide the following:

a. Written confirmation from Manulife that he is no longer eligible for benefits under its plan, the date that he became ineligible, and the reason that he is ineligible. b. If he cannot provide written confirmation of ineligibility, he will provide a copy of his Manulife benefit card and a copy of the Manulife benefits booklet.

5. Submit paperwork to transition to Manulife long-term disability

48The respondent submitted that he was in receipt of EI benefits. He did not otherwise respond to this undertaking.

49In his oral submissions, the respondent suggested that he may be involved in a dispute with Manulife regarding his claim for disability benefits. This information would be relevant to the determination of his present income.

50I am going to order that the respondent provide a copy of any application that he has submitted to Manulife for long-term disability benefits between June 1, 2022 and the present. I am also going to order that he provide copies of any correspondence that he has received from Manulife in response to any application that he has submitted for short-term or long-term disability benefits from June 1, 2022 to present.

6. Provide a Form 13.1 Financial Statement

51The respondent did, in fact, provide a financial statement with the package of undertakings that he disclosed to counsel on May 12, 2023. Counsel for the applicant submits that it was unsatisfactory because it was a Form 13 Financial Statement and not a Form 13.1 Financial Statement.

52In fairness to the respondent, the undertaking as recorded on the transcript provided to him read as follows:

Undertaking requested and given to produce current financial statement with updated expenses, within a month.

53The financial statement originally filed by the respondent when he responded to the application was a Form 13.1 Financial Statement. At that time, he was represented by counsel.

54The purpose of the updated financial statement appears to have been to confirm the respondent’s income and expenses following the commencement of his medical leave of absence. The financial statement served is sufficient for this purpose.

55This undertaking is considered fulfilled, subject to any updated financial statements that may be ordered by the court or required by the Family Law Rules.

7. Provide a statement showing balance of TD chequing account on date of separation

56The respondent submits that this was a “historic account” and had no balance on the date of separation. He has provided no evidence to support this submission.

57Upon request, a bank will provide a client summary confirming active and closed accounts, including details of when an account was opened or closed. Information about this “historic account” is therefore available to the respondent to fulfill this undertaking.

58The respondent will be ordered to fulfill this undertaking.

8. Provide a statement confirming the value of RRSP on the date of separation, as well as its current balance, from the Bank of Montreal

59It is the respondent’s evidence that this was previously provided. The applicant identifies it as an outstanding undertaking.

60I have reviewed all of the documents filed by the parties and do not see these statements. The respondent will be ordered to fulfill this undertaking.

9. To provide a statement confirming the balance of TD Visa on the date of separation

61The respondent has provided a statement for his TD Visa, dated August 15, 2022, but there is no evidence that he has provided the statement as at the date of separation.

62The respondent will be ordered to fulfill this undertaking.

10. To provide a statement confirming the date that the BMO line of credit was incurred as well as its balance on the date of separation

63The respondent has provided a statement dated September 22, 2017 confirming that the BMO line of credit (Account No. 2219-5268-716) was paid in full. He has provided a statement dated January 22, 2023 confirming that its balance owing was $30,684.41.

64There is no evidence that the respondent has provided a statement for the BMO line of credit as of the date of separation. This undertaking is considered to be partially fulfilled, but the respondent will be ordered to fulfill the balance of this undertaking by providing a statement as of the date of separation.

11. To provide a statement for the Northern Credit Union Collabria Visa on the date of separation.

65The respondent has provided a statement dated December 16, 2022 confirming that the Northern Credit Union Collabria Visa (Account No. 1335) had a balance owing of $ 16,687.86. He has provided a statement dated April 16, 2023 confirming a balance owing of $18,010.68.

66There is no evidence that the respondent has provided a statement for the Northern Credit Union Collabria Visa as of the date of separation. The respondent will be ordered to fulfill this undertaking.

12. To provide confirmation of any debts being claimed on the date of marriage

67The respondent submits that he has provided this information on his initial financial statement and in, “continuing documents”.

68The respondent’s initial financial statement disclosed $6,500.00 of assets on the date of marriage but no debts.

69In his answer to undertaking 27, “Undertaking requested and given to make best efforts to find out whether or not had BMO line of credit on the date of marriage”, the respondent replied, “ Yes. As per the 1st Financial Statement and all of the following documentation provided to you during the past 2 ½ years, to avoid further delay tactics, as per the usual process in dealing with Ms. Polack and your Legal Team, I will provide the official statement from on the financial statement again.”

70There is no evidence before me that the statement was provided, or that any other information was provided about debts owing by the respondent on the date of marriage. There will be an order requiring the respondent to fulfill this undertaking.

Release of Trust Funds

71On July 6, 2023, the sum of $68,419.75 was paid into court, representing the respondent’s net proceeds from the sale of the matrimonial home. The applicant’s net proceeds of sale were released to her pursuant to Justice Cornell’s order of June 29, 2023.

72The respondent seeks to have some or all of his share of the net proceeds released to him. The applicant opposes this request, arguing that the funds are required to satisfy the equalization payment owing to her or to secure the payment of spousal support.

73The applicant has submitted a draft net family property statement suggesting that there will be a sum owing to her of $51,825.59. This net family property statement does not include the balances of the respondent’s credit cards or line of credit on the date of separation. The addition of these amounts will reduce what is owing by the respondent to the applicant.

74With the exception of the mortgage, the parties did not owe any joint debt on the date of separation. The applicant will not be liable for the respondent’s debts in the event of a default or bankruptcy. The principal asset of the respondent is his pension, a portion of which could be rolled over to satisfy its equalization.

75Presently, there is no interim order for spousal support payable by the respondent to the applicant. As noted, this issue was deferred until after the completion of questioning.

76It is the respondent’s evidence that he is not employed, his disability benefits have been discontinued, he is unable to meet his financial obligations, and he is on the verge of being evicted. He has provided no independent evidence confirming the status of his disability benefits or his dire financial status.

77On the evidence before me, I am satisfied that some disbursement of the funds held in trust is appropriate. There are more than enough funds to satisfy any potential equalization, and there are assets from which an equalization could be at least partially satisfied if it were necessary to allocate funds to spousal support. In the circumstances, an order will be made to release some of the funds in trust to the respondent.

Orders

78For the reasons given, I order the following:

1. The respondent shall fulfill the following outstanding undertakings not later than November 30, 2023, or provide evidence of his best efforts to do so: a. He shall file his Income Tax Returns for 2020 and 2021 and provide complete copies of his filed returns. He shall provide copies of his 2020 and 2021 Notices of Assessment within 15 days of receiving them. b. He shall sign any authorization and direction provided to him by the applicant and her counsel to obtain a copy of his OHIP decoded summary and shall provide a legible photocopy of the front and back of his OHIP card. c. He shall provide written confirmation from Manulife that he is no longer eligible for extended health benefits, including the date that he became ineligible and the reason he is ineligible. Alternatively, he shall provide a copy of his Manulife benefits booklet (either a paper or an electronic copy) and a legible photocopy of his Manulife benefits card. d. He shall provide a copy of any application that he has submitted to Manulife for long-term disability benefits between June 1, 2022 and the date of this order, and he shall provide copies of any correspondence he has received from Manulife in response to any application for short-term or long-term disability benefits between June 1, 2022 and the present. e. He shall provide a statement confirming the status of his TD chequing account on the date of separation and its balance, if any. f. He shall provide a statement from the Bank of Montreal confirming the value of his RRSP on the date of separation. g. He shall provide a statement confirming the balance of his TD Visa on the date of separation. h. He shall provide a statement confirming the balance owing on his Bank of Montreal line of credit on the date of separation. i. He shall provide a statement confirming the balance owing on his Northern Credit Union Collabria Visa on the date of separation. j. He shall provide the particulars of any debts owed by him on the date of marriage and any supporting documents. If there were no debts owing, he will confirm this in an affidavit.
2. Pursuant to s. 42(1) of the Family Law Act, R.S.O. 1990, c.F.3, Vale Canada Limited shall file with the court a written return of all wages or remuneration paid to the respondent, Peter Larabie (d.o.b. February 18, 1980) from January 1, 2022 to the date of this order, including the dates that the wages or remuneration were paid, the amount of the wages or remuneration, and any statutory or other deductions remitted from the wages or remuneration. Vale Canada Limited shall file this return with the court within 30 days of being served with this order. The applicant will be responsible for serving this order on Vale Canada Limited by regular mail or fax.
3. The sum of Fifteen Thousand Dollars ($15,000.00) shall be released to the respondent from the funds currently paid into court in this matter.
4. The applicant shall continue to serve the respondent by mail at the address provided in the respondent’s Notice of Change in Representation, dated January 31, 2022 (sic), unless the respondent provides an alternate mailing address or email address by serving and filing an updated Notice of Change in Representation. Any updated Notice of Change in Representation served by the respondent shall provide a mailing address and/or an email address where he can reliably be served.
5. The parties may schedule a settlement conference before me prior to the next return date in this matter by contacting the Trial Co-ordinator.
6. The order arising from this endorsement can be issued and entered by the applicant’s counsel without the requirement that it be approved as to form and content.
7. This matter is otherwise adjourned to the motions court scheduled for December 21, 2023, to address the following issues: a. The nature and extent of the respondent’s participation in this proceeding going forward. b. The applicant’s obligation to respond to the respondent’s requests to admit. c. The costs, if any, payable with respect to this motion.

The Honourable Madam Justice K.E. Cullin