COURT FILE NO.: FC-17-00000739-0001 DATE: 2024-05-15

SUPERIOR COURT OF JUSTICE - ONTARIO FAMILY COURT

RE: Rameh El Merhebi, Applicant AND: Sylvia Guido, Respondent

BEFORE: The Honourable Justice M. Bordin

COUNSEL: Self-represented Applicant Self-represented Respondent

HEARD: May 6, 2024

REASONS FOR DECISION

Background

[1] The history of the parties and the proceedings were set out by Justice Bale in her June 5, 2023 endorsement, 2023 ONSC 3286, at paras. 4 through 29. I do not repeat that history here.

[2] On March 2, 2020, at an uncontested trial, Justice Henderson ordered the applicant to pay child support of $991 per month retroactive to the date of separation and ongoing spousal support of $554 per month for the first 18 months post separation, reduced to $250 per month for the following nine months and ongoing based on an imputed income of $65,000 per year. Justice Henderson ordered that the applicant pay 75 percent of all section 7 expenses for the children on a going forward basis. Justice Henderson also ordered the applicant to pay costs of $10,000 within 30 days of his March 2, 2020 order.

[3] On September 20, 2021, the applicant's motion to change the final order of Justice Henderson was issued.

[4] On June 5, 2023, Justice Bale dismissed the applicant’s motions to set aside the final order of Justice Henderson. Among other orders, Justice Bale dismissed all issues in the applicant’s motion to change except for the issues of ongoing child support and spousal support.

[5] Justice Bale ordered that within 30 days of her June 5, 2023 order the applicant was to produce:

a. complete income tax returns for the 2020, 2021, and 2022 taxation years, with schedules and attachments; b. notices of assessment for the 2020, 2021, and 2022 taxation years; c. a complete copy of his application for ODSP, including all attachments; d. a detailed record of the efforts that he has made to secure employment for the period of 2020 to present, including: i. a copy of his resume and any amended versions; ii. job applications and cover letters submitted; iii. dates of any interviews; and iv. details of any job offers received.

The Current Motions

[6] On August 15, 2023, the respondent commenced a motion to find the applicant in contempt for failing to produce his complete tax returns and notices of assessment for 2020, 2021, 2022, ODSP records, and employment search records as ordered by Justice Bale.

[7] The respondent’s notice of contempt motion and supporting affidavit affirmed August 15, 2023 were personally served on the applicant on August 17, 2023.

[8] The applicant served responding affidavits sworn August 20, 2023, dated November 2, 2023 but sworn November 7, 2023, and dated November 17, 2023 but sworn November 20, 2023.

[9] The motion came before Justice Henderson on December 14, 2023. The applicant objected to Justice Henderson hearing the motion. Justice Henderson recused himself and the motion was adjourned to the January 11, 2024 assignment court to set a date for the contempt motion.

[10] The respondent served another notice of motion dated February 20, 2024. In this notice of motion, the respondent seeks the following orders:

a. An order striking the applicant’s pleading in its entirety; b. An order eliminating the applicant’s obligation to pay spousal support which had been ordered by Justice Henderson on March 2, 2020; and c. An order reducing the applicant’s obligation to pay section 7 expenses to 50 percent from 75 percent.

[11] The notice of motion, together with a supporting affidavit dated February 20, 2024, affirmed on February 21, 2024, was served by mail on the applicant.

[12] The applicant served a responding affidavit incorrectly dated February 25, 2023, which was sworn on February 26, 2024.

The Position of the Parties

[13] Both parties, but in particular the applicant, devoted a great deal of their affidavits and submissions to what transpired before Justice Henderson and Justice Bale.

[14] With respect to her contempt motion, the applicant says the respondent has failed to produce the above-referenced documents ordered to be produced by Justice Bale.

[15] In her affidavits, the respondent sets out the basis for her motion to strike the applicant’s pleadings. The reasons include the failure to comply with Justice Bale’s order. Some of the reasons are based on the applicant’s conduct in the family litigation since its inception, which the respondent asserts is abusive.

[16] The respondent says that the applicant has not provided evidence to support his claims. Essentially, she is seeking summary judgment on the remaining issues. In her August 2023 affidavit, the respondent states that she brought a motion to dismiss the applicant’s motion to change, which was heard in February and March 2023. That motion was determined by Justice Bale and the respondent now seeks to relitigate the issue.

[17] One of the reasons set out by the respondent in support of her motion to strike relates to the applicant’s alleged failure to appear in unrelated criminal proceedings, which is not relevant to the matrimonial litigation other than perhaps as an indication that the applicant does not abide by court orders if the failure to appear could be proven.

[18] Some of the respondent’s reasons for her motion to strike relate to an assertion that the materials produced by the applicant contradict his affidavits. This is a credibility matter for trial.

[19] The respondent also asserts that the applicant has failed to disclose assets, but she then goes on to provide details of those assets in her affidavit. She says that the respondent has failed or delayed in producing certain documentation and financial information throughout the litigation. It is possible that this is the case, but from the materials before me, I cannot determine this allegation with sufficient certainty one way or the other. Further, there has been no motion or order for production of further documentation or financial information drawn to my attention which the applicant has not complied with.

[20] The applicant has not paid the costs ordered by Justice Henderson on the May 2020 uncontested trial.

[21] Most of the applicant’s affidavits contain defamatory comments directed toward the courts, jurists who have handled the proceedings, the Niagara Regional Police Service, and the respondent. He perseverates on the proceedings before Justices Henderson and Bale and on the perceived injustice of those proceedings as well as on what transpired in the criminal proceedings against him.

[22] The applicant also makes allegations that the respondent has lied in court proceedings and affidavits, mostly regarding her income and ability to pay expenses, which may be issues for trial. He asserts she is in contempt and has failed to produce financial information, but he has not sought leave to bring a contempt motion or a motion for production and does not provide cogent evidence related to the alleged contempt and failure to produce.

[23] He also submits a doctor’s note regarding his back issues and that he is unable to drive or sit for long distances and is waiting for back surgery. He provides some other evidence of health issues that do not bear upon the issues on this motion.

[24] The applicant deposes that he mailed the respondent all of the disclosure ordered by Justice Bale, but he provides no documentary evidence of this and does not provide copies of the documents he says he has disclosed in his affidavit.

[25] The applicant’s submissions were focused almost entirely on the various perceived injustices he believes he has been subjected to at the hands of the courts for the last seven years and on making allegations against the respondent. He asserts he has been alienated from his children. The applicant wants to get to trial. He wants to address these perceived injustices. He does not appear to appreciate that the only remaining issues for trial on his motion to change are child and spousal support. He insinuated several times that he has no intention of paying support.

[26] The applicant was urged to direct the court to evidence that he had complied with the terms of Justice Bale’s order. With respect to the tax returns, the applicant directed my attention to a document filed on or about June 30, 2023 in the settlement conference bundle in CaseLines. This document indicates that he has produced his notices of assessment for 2020, 2021, 2022, and his complete 2022 income tax return and schedules. The respondent concedes receipt of these documents.

[27] With respect to the ODSP application, the applicant directed my attention to Exhibit A of his August 20, 2023 affidavit which contained a statement from the Ministry that he was in receipt of ODSP as of August 20, 2023 and a printout from the applicant’s MyBenefits page of the Ministry site indicating payments made to him between July 2022 and August 2023. He admitted in submissions he has not produced the application for OSDP. He said it is with the Ministry and that he requested it over the phone and was told he could not obtain it. No request was made in writing. None of this is in evidence before me.

[28] Nothing further was drawn to my attention that had been produced by the applicant. There is no evidence as to why the remaining productions ordered to be produced have not been produced.

[29] The respondent says that an order should be made eliminating the applicant’s obligation to pay spousal support on a going forward basis and that an order should be made reducing the applicant’s obligation to pay section 7 expenses to 50 percent from 75 percent. Her reasons are that the applicant has not paid child support, she does not intend to collect the section 7 expenses, and she wants to reduce her requirement to interact with the applicant over these issues and end his ongoing demands for disclosure.

[30] The applicant was asked for his position on these two issues. His submissions amounted to him not being concerned about these requests.

Law and Analysis

[31] The Ontario Court of Appeal in 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951, 135 O.R. (3d) 385, summarized the law with respect to a contempt motion:

A party seeking to establish civil contempt must prove that: (a) the order alleged to have been breached states clearly and unequivocally what should and should not have been done; (b) the party alleged to have breached the order had actual knowledge of it; and (c) the party allegedly in breach intentionally did the act the order prohibits or intentionally failed to do the act the order compels: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paras. 33-35. A judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order: Carey v. Laiken, at para. 37. The burden on a party seeking a contempt order is to establish the above elements by proof beyond a reasonable doubt: Carey v. Laiken, at para. 32; Bell ExpressVu Limited Partnership v. Torroni, 2009 ONCA 85, 94 O.R. (3d) 614, at para. 29; Chiang (Re), 2009 ONCA 3, 93 O.R. (3d) 483, at paras. 11 and 50.

[32] Justice Bale’s order is clear and unequivocal as to what it requires. The applicant had knowledge of the order. He received a copy of Justice Bale’s endorsement which contains the orders made by email on June 5, 2023 and responded to the email that same day. He has been aware of the contempt motion since August 2023 and refers to the fact that it first came before Justice Henderson in December 2023. The applicant refers to Justice Bale’s endorsement and order in his affidavit. He denies that he is in breach of the order. He says he has complied with his production requirements.

[33] The respondent says the applicant has failed to produce the following documents ordered by Justice Bale:

a. complete income tax returns for the 2020 and 2021 taxation years, with schedules and attachments; [^1] b. a complete copy of his application for ODSP, including all attachments; [^2] c. a detailed record of the efforts that he has made to secure employment for the period of 2020 to present, including: i. job applications and cover letters submitted; ii. dates of any interviews; and iii. details of any job offers received.

[34] I find that the applicant has not established that he has produced the following documents to the respondent:

a. complete income tax returns for the 2020 and 2021 taxation years, with schedules and attachments; b. a complete copy of his application for ODSP, including all attachments; c. a detailed record of the efforts that he has made to secure employment for the period of 2020 to present, including: i. job applications and cover letters submitted; ii. dates of any interviews; and iii. details of any job offers received.

[35] On the evidence, there is some doubt in my mind that the applicant has intentionally breached Justice Bale’s production order. He has produced some of the required information. There is some information that the applicant has made some inquiries for some of the information. In the circumstances, I am not in a position to find the applicant in contempt, but it is clear that there is outstanding production required to comply with the order, which I will address by way of a further order below. The contempt motion is therefore adjourned subject to the terms set out below.

[36] Although not stated explicitly in the respondent’s materials, the likely avenue by which the respondent seeks to strike the applicant’s pleadings is pursuant to rule 1(8) of the Family Law Rules, O. Reg. 114/99, which provides:

(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.

[37] The consequences of striking a party’s pleading are set out in rule 1(8.4):

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
2. The party is not entitled to participate in the case in any way.
3. The court may deal with the case in the party’s absence.
4. A date may be set for an uncontested trial of the case.

[38] In determining the most appropriate remedy on a motion to strike a pleading, the court must be guided in its analysis by the primary purpose of the Family Law Rules, as set out in rule 2(2), which is to deal with cases justly: Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, at para. 39; Dagher v. Haji, 2021 ONSC 2853, at para. 13.

[39] The court’s ultimate choice of a remedy on a motion to strike a pleading should not go beyond what is necessary to express the court’s disapproval of the conduct in issue: Marcoccia v. Marcoccia, 2008 ONCA 866, 60 R.F.L. (6th) 1, at para. 14; Purcaru v. Purcaru, 2010 ONCA 92, 75 R.F.L. (6th) 33, at para. 49.

[40] In deciding whether an order striking the pleading is the sanction that will suffice, the court should first consider all of the alternative remedies outlined in rule 1(8) of the Family Law Rules, to determine whether they would be responsive and proportionate responses based on the facts of the case at hand. However, those remedies are not exclusive, and the court should therefore also consider whether any other responses may suffice having regard for the unique facts of the case: Mullin, at paras. 44-46; Bouchard v. Sgovio, 2021 ONCA 709, at para. 49.

[41] The court’s discretion to strike a pleading should be exercised sparingly, in limited and exceptional circumstances, and only where no other remedy would suffice: Marcoccia, at para. 3; Purcaru, at para. 47; Chiaramonte v. Chiaramonte, 2013 ONCA 641, 370 D.L.R. (4th) 328, at paras. 31-33; Kovachis v. Kovachis, 2013 ONCA 663, 367 D.L.R. (4th) 189, at para. 24; Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 15; Wouters v. Wouters, 2018 ONCA 26, at para. 45; Martin v. Watts, 2020 ONCA 406, at para. 7; Aslezova v. Khanine, 2023 ONCA 153, at para. 9.

[42] Although striking pleadings is limited to exceptional circumstances, a party’s wilful non-compliance with disclosure obligations and orders “must be considered egregious and exceptional” having regard for “the continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation”: Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 10, leave to appeal refused [2017] S.C.C.A No. 29.

[43] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing and should not require court orders. Nonetheless before striking pleadings, a court should consider not only the availability of any alternate remedy, but also the importance and materiality of any items not produced: Wouters, at para. 45.

[44] The legal principles governing the exercise of judicial discretion to strike pleadings has been described as a three prong test by the Divisional Court in Van v. Palombi, 2017 ONSC 2492, at para. 30:

1. First, is there a triggering event justifying the striking of the pleading?
2. Second, should the pleading be struck in whole or in part, or should another remedy be implemented?
3. Third, if the pleading is struck in whole, what are the appropriate consequences for the party whose pleading was struck? [^3]

[45] Given that the motion to strike depends in part on a failure to comply with the order of Justice Bale for further production, I find that it is premature to determine the motion to strike at this time and I adjourn the motion to strike subject to the following terms.

Order

[46] I make the following orders:

1. The applicant shall, within 21 days of the date of this order, produce the following documents: a. his complete income tax returns, including schedules and attachments, for the 2020 and 2021 taxation years; b. a complete copy of his application for ODSP, including all attachments, or a copy of his request made in writing to the Ministry for a copy of his application for ODSP and any response from the Ministry; c. a detailed record of the efforts that he has made to secure employment for the period of 2020 to present, including any and all: i. job applications and cover letters submitted; ii. dates of any interviews; and iii. details of any job offers received. d. his complete 2023 income tax return, including all schedules and attachments, and his notice of assessment;

2. The applicant shall, within 21 days of the date of this order, pay the $10,000 in costs awarded against him by Justice Henderson on March 2, 2020;

3. The applicant is no longer required to pay the spousal support which had been ordered by Justice Henderson on March 2, 2020 and the applicant’s ongoing spousal support obligation is terminated as of the date of this order at the request of the respondent;

4. Any spousal support arrears are not affected by this order; and

5. As of the date of this order, the applicant’s share of section 7 expenses is reduced to 50 percent from 75 percent.

[47] If the applicant fails to comply with the terms of para. [46] 1 and 2 of this order, the respondent may return the motion for contempt and the motion to strike the applicant’s pleadings, before me, on 14 days’ notice to the applicant. In doing so, the respondent may file one further affidavit which sets out only relevant evidence of events that have transpired since May 6, 2024. In response, the applicant may file only one affidavit which sets out only relevant evidence of events that have transpired since May 6, 2024. The applicant’s affidavit shall attach as separate exhibits copies of the documents he says he has produced pursuant to my order herein and shall provide any explanation for why any documents have not been produced.

[48] The applicant should be aware that if he fails to comply with para. [46] 1 and 2 of my order, the court may strike his pleadings resulting in the termination of his motion to change and risks a possible costs order against him.

[49] The respondent may serve and file cost submissions of this motion of no more than two double-spaced pages by May 24, 2024.

[50] The applicant may serve and file cost submissions of this motion of no more than two double-spaced pages by June 10, 2024.

[51] All submissions shall be filed with the court through the portal, with a copy also being emailed to the judicial assistants at st.catharines.scjja@ontario.ca.

M. Bordin, J. Date Released: May 15, 2024

[^1]: The respondent also says she does not have this information for 2023. Although the applicant is required to produce this information, it was not the subject of Justice Bale’s order. [^2]: The respondent says she has only received a one-page document indicating that the applicant is on ODSP. [^3]: This three-part analysis has been cited in numerous other cases. See for example, the decision of Madsen J., as she then was, in Holden v. Ploj, 2023 ONSC 1287, at para. 24.