Court File and Parties

Court File No.: FS-22-00031386-0000
Date: 2025-03-18
Court: Superior Court of Justice - Ontario

Applicant: Lorena A. Mason
Respondent: Matthew R. Thompson

Before: Natasha Mathen
Counsel: Sheila Gibb / Rhea Kamin, for the Applicant
Respondent: Self-represented

Heard: March 18, 2025

Endorsement

Introduction

[1] The Applicant, ("Lorena") brings this motion for an Order striking the claims by the Respondent, ("Matthew"), pursuant to Rule 1(8) of the Family Law Rules ("Rules"), with the result that he is automatically precluded from participating in this proceeding or in a trial of this matter. Lorena also seeks an Order that this matter may proceed to an uncontested trial.

[2] In support of the above order, the Applicant cites the following:

a. Matthew’s breaches of orders meant to keep her and their daughter “safe from his abusive, bullying and threatening behaviour”;

b. Matthew’s breaches of two costs orders of $16,500;

c. Matthew’s refusal to post security for costs pursuant to court order;

d. Matthew’s habit of bringing “multiple motions without paying outstanding costs and/or asking for the Court's leave, in breach of two Court Orders”;

e. Matthew’s refusal to provide basic financial disclosure; and

f. Other inappropriate behaviour that will be discussed, as necessary, in these reasons.

[3] This motion was initiated by a Notice of Motion served on the Respondent on March 10, 2025. An affidavit filed by an IT Administrator of the Applicant’s law firm deposes that on that date a ShareFile was made accessible to the Respondent, containing the Applicant’s affidavit dated March 10, 2025, a Draft Order and the Notice.

[4] At 3:59 pm on March 17, the day before this motion, the Respondent emailed the Family Trial Office the following materials:

a. A Form 14C (confirmation of motion) which states an intention to argue for a contested adjournment on the basis that Matthew “filed a Motion for Leave for Appeal and Motion for Appeal over An Order adjourning the March 18, 2025 Motion to Strike pending the Respondent's Motion to Set Aside an Order and Motion for Appeal regarding the existing Costs Orders and Security for Costs Order of Justice Nakonechny appearance of procedural unfairness. An automatic stay of payments are in effect as per Rule 63.01(1)”;

b. A Form 14A Notice seeking, among other things, an order adjourning this motion, and an order adjourning the trial currently set for May 12, 2025;

c. A Form 14A “Notice of Motion 2” seeking, among other things “[a]n order setting aside all orders and endorsements issued by Justice E.L. Nakonechny in this matter”; an order staying all enforcement proceedings pending the outcome of this motion and any subsequent appeal; an order permitting the motion to proceed without a prior Case Conference; an order removing the Applicant’s law firm as counsel of record due to conflicts of interest and failure to disclose an alleged “prior professional relationship with the presiding judge”;

d. A Form 14B Notice of Motion that repeats some of the relief requested in the Form 14A notices;

e. A 6-page Form 14A Affidavit that purports to set out the basis for staying the orders issued by Justice Nakonechny; and

f. A 43-page Form 14A Affidavit that purports to set out the basis for staying all orders issued by Justice Nakonechny.

[5] At the hearing, Matthew confirmed that he has brought a motion for leave to appeal to the Divisional Court. The document was filed on Monday, March 17, 2025.

[6] The Applicant issued a reply affidavit confirming that on Friday, March 14, 2025, she was served with a “Notice of Motion Leave to Appeal Package” seeking, inter alia, the following relief:

a. an order removing my lawyers, Epstein Cole (Sheila Gibb and Rhea Kamin) as my lawyers of record – echoing threats he has made against me many times in this case;

b. an order that I must retain new legal representation within 30 days, if I choose to retain a new lawyer;

c. an immediate stay on the motion returnable March 18, 2025 to strike his pleadings;

d. a stay of the May 12, 2025 trial "pending resolution of procedural fairness concerns";

e. a stay of all of Justice Nakonechny's Orders and Endorsements, including her costs and security for costs orders he is in breach of;

f. an "order for a Case Conference and/or Motion to set aside a judgment or new trial" for this matter, or, alternatively"[a]n Order reassigning my case to a different Justice due to fairness concerns"; and

g. an order for costs in the amount of $45,152.

[7] The parties began cohabiting in May 2018 and married in September of that year. They separated on May 8, 2022. Their child is currently 5 years old and lives primarily with Lorena.

[8] Lorena has made allegations of serious family violence against Matthew directed at her and their daughter.

[9] Matthew and Lorena entered into a Consent Order on September 16, 2022, with Matthew having supervised parenting time with Erin on Thursdays from 4-8 p.m. and Saturdays from 12-8 p.m. On March 12, 2024, Justice Nakonechny ordered that Matthew's parenting time be professionally supervised. Since that order, Lorena deposes, Matthew has not arranged for a professional to supervise his parenting time.

[10] Lorena deposes that Matthew has not paid child support or contributed to section 7 expenses since separation.

[11] Matthew has been subject to many court orders including:

a. Justice Black, on February 28, 2023, ordered that Matthew was not entitled to participate in a motion for exclusive possession, granting Lorena exclusive possession, ordering police enforcement, and awarding costs of $10,537.25;

b. Justice Brownstone, on May 30, 2023, awarded costs of $4,500 after Lorena brought a motion dispensing with Matthew’s consent to register their child in junior kindergarten, to which Matthew consented at the last minute;

c. Justice Kristjanson, on June 6, 2023, ordered that Matthew could not bring any further motions without paying outstanding court orders and seeking leave of the Court; and awarded costs against him of $7,500;

d. Justice Nakonechny, on April 4, 2024, found that Matthew acted in bad faith and awarded costs of $9,000;

e. Justice Nakonechny, on September 25, 2024, ordered Matthew to pay $30,000 security for costs into court within 30 days for costs of her order of April 4, 2024, the Exit Pre Trial and the trial.

Issues

[12] This motion raises the following issues:

a. Should this motion be adjourned pending the resolution of Matthew’s purported appeals, or leaves to appeal, of prior orders of this Court?

b. If the answer to (a) is “no”, should Matthew’s other requests for relief, and accompanying materials, filed on this motion be considered?

c. If the answer to (a) is “no”, should Matthew be permitted to participate in this motion to strike?

d. Should Matthew’s pleadings be struck and this matter be set down for an uncontested trial?

[13] At the hearing, I advised the parties that I would reserve the question of costs to the trial judge.

Brief Conclusion

[14] This motion should not be adjourned simply because Matthew has filed an appeal or an application for leave to appeal prior court orders. First, such appeals are clearly out of time. Second, and in any event, I am not persuaded that Matthew’s principal allegation based on “procedural fairness”, is well-founded. Indeed, I find it devoid of merit.

[15] Matthew’s requests for relief on this motion are out of order. Justice Nakonechny gave leave only for a motion to strike. On a regular, one-hour motion, it is inappropriate to consider the myriad other requests Matthew has put forward. I note that Matthew is under a specific prohibition by Justice Kristjanson against bringing motions without leave. He is also bound by the Trial Scheduling Endorsement Form executed on February 12, 2025, signed by both parties, under which any further motions require leave of the Trial Management judge.

[16] Contrary to the Applicant’s request, I permitted Matthew to make submissions at the hearing. The Applicant’s requested relief has serious consequences for Matthew. I determined it appropriate to hear from him.

[17] Having said that, Matthew said little that was directly responsive to the motion to strike. I appreciate that Matthew is making a broader argument of bias against Justice Nakonechny that he views as breaching procedural fairness. That is a serious allegation for which Matthew has not established nearly the required foundation. In contrast, while he contested some of the Applicant’s specific arguments, he did not answer the central question on this motion: whether his behaviour throughout these proceedings merits the rare remedy of striking his pleadings and ordering this matter to an uncontested trial. I find that the Applicant has met her burden on this issue. Where he bore a burden, Matthew did not discharge it.

Analysis

a. Should this motion be adjourned pending the resolution of Matthew’s application for leave to appeal prior orders of this Court?

The Law

[18] In McMillan v. Klug, 2024 ONSC 1125, the Divisional Court said the following about interlocutory appeals:

[12] The presence or absence of merits of an appeal may be dispositive on a motion to extend time. Obtaining leave to appeal an interlocutory order requires meeting the test found in Rule 62.02(4), of the Rules of Civil Procedure, which requires that an appellant establish:

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is desirable that leave to appeal be granted; or

(b) there appears to be good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted

[13] It is particularly difficult to obtain leave to appeal interlocutory orders in family law matters given that it is desirable to move these proceedings along given their subject matter and impact on families: Lokhandwala v. Khan, 2019 ONSC 6436, para 5.

[19] The test for finding a judge to be in a position of conflict or bias is whether “a reasonable and informed person with knowledge of all relevant circumstances, viewing the matter realistically and practically, would apprehend a lack of impartiality in the judge”: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25.

Findings

[20] Matthew says that he has filed for leave to appeal Justice Nakonechny’s prior orders including her September 25, 2024, order that he pay security for costs and, it would appear, her order made on February 12, 2025, which (a) dismissed a 14B motion Matthew filed and (b) granted the Applicant leave to bring this motion to strike.

[21] Matthew’s primary target in the above appeals is Justice Nakonechny’s security for costs order. That order, which he has not satisfied, is the linchpin for this motion to strike. It was made almost six months ago, which is well outside the time for an appeal.

[22] However, Matthew says that he should not be subject to those time limits because he only recently became aware of circumstances which mandate setting aside all of Justice Nakonechny’s orders in this case. Those circumstances, he says, constitute bias or, I gather, a reasonable apprehension of bias:

a. During the parties’ Trial Management Conference on February 12, 2025, Justice Nakonechny “admitted” that she was “biased”.

b. Matthew then discovered that Justice Nakonechny was a faculty member at a continuing legal education (CLE) event held in 2022, hosted by the Advocates’ Society. The Applicant’s counsel’s law partner chaired or co-chaired that conference.

c. Matthew says the CLE proceedings were closed to the public, denying him the opportunity to discern what role Justice Nakonechny played, which denies him procedural fairness.

d. Matthew relies on the oft-quoted adage, “Justice must not only be done, but be seen to be done”.

[23] I am not persuaded that Matthew has established why his 11th-hour application for leave to appeal should prevent the court from hearing this motion.

[24] Matthew is clearly out of time for an appeal. Against this, he makes a bias argument against the judge who scheduled this motion. There is no indication, however, that this argument has the slightest chance of success.

[25] First, the CLE conference in which Justice Nakonechny participated clearly is not grounds to allege bias in or make a request for recusal from this case.

[26] The governing body for complaints against federally appointed judges (like Justice Nakonechny) is the Canadian Judicial Council (“CJC”): Judges Act, RSC 1985, c J-1, s. 59.

[27] The CJC issues a code called “Ethical Principles for Judges”. Section 3.A.7 of the Principles states:

Judges are uniquely placed to make a variety of contributions to the administration of justice. Subject to the limitations imposed by judicial office, judges are encouraged, for example, to take part in legal education programs for students, lawyers and judges, and in activities to make the law and the legal process more understandable and accessible to the public, such as giving lectures, participating in moot courts or through legal writing.

[28] The CJC encourages judges to participate in continuing legal education programs for “students, lawyers and judges”. This refutes any general objection that such activities are ethically suspect.

[29] Moving from the general to the specific, Matthew’s argument appears to be that because a particular lawyer chaired or co-chaired an education event at which a judge participated, the judge is in a conflict of interest in all future cases involving that lawyer or, indeed, anyone in their firm. At the hearing of this motion, I pressed Matthew for specifics of how this leads to the conclusion that Justice Nakonechny is biased. Matthew did not provide anything further, saying that such arguments were contained in his leave materials to the Divisional Court.

[30] Matthew’s argument is unsupportable on its face. It would destroy the possibility of judges participating in legal education. It does not correspond to well-established tests for bias and conflict of interest – none of which Matthew cited.

[31] Second, Matthew referred to a comment made by Justice Nakonechny during the Trial Management Conference in February, 2025. According to him, Justice Nakonechny declined to seize herself as a trial judge, acknowledging that she might be “biased.”

[32] While discussions at a TMC are privileged, counsel for the Applicant decided to respond to Matthew’s disclosure of the discussion. Because Justice Nakonechny had heard some of the motions in this case, and was familiar with many of the issues, the parties discussed whether she might seize herself of the trial. Justice Nakonechny declined on the basis that, by virtue of presiding over the TMC she was privy to settlement and quasi-settlement discussions. In her opinion, that made it inappropriate for her to sit as the trial judge.

[33] I find Applicant counsel’s account entirely plausible, far more so than Matthew’s suggestion that, at the TMC, Justice Nakonechny admitted that she was biased against him.

[34] There is no reason to think that Matthew’s recent application for leave to appeal has any chance of success. It likely is a delay tactic. Were it to succeed, this tactic would frustrate the primary objective under the Rules to treat cases “justly”. As a result, it is not appropriate to adjourn this motion until those proceedings are concluded.

[35] Matthew’s request for an adjournment is dismissed.

b. If the answer to (a) is “no”, should Matthew’s other requests for relief filed on this motion be considered?

[36] Matthew is prohibited from filing motions in this court without leave. Justice Kristjanson made an order to this effect in 2023. As Matthew has not appealed that order it remains in effect.

[37] Matthew is also subject to the Trial Scheduling Endorsement Form (TSEF) signed by both parties on February 12, 2025. The TSEF states that any motions other than the Applicant’s motion to strike require leave of the Trial Management Judge – Justice Nakonechny.

[38] Matthew argues that, because Justice Nakonechny is biased, it is unfair for her to control whether he can bring a motion.

[39] Above, I have explained why I regard Matthew’s claims of bias are, essentially, without merit. Matthew is properly subject both to the TSEF and to Justice Kristjanson’s order.

[40] Matthew’s numerous notices of motion, filed on the eve of this motion and outlined in paragraph 4 of these reasons, are dismissed. I decline to consider them, their accompanying affidavits and their materials.

c. If the answer to (a) is “no”, should Matthew be permitted to participate in this motion to strike?

[41] In my brief conclusion, I explained why I permitted Matthew to make submissions on the specific issue set down on this motion. This question need not be addressed further.

[42] Having said that, Matthew’s submissions did not offer much assistance to the court. That means that many of the Applicant’s arguments are uncontested.

d. Should Matthew’s pleadings be struck and this matter be set down for an uncontested trial?

The Law

[43] Court orders are not optional. Non-compliance must have consequences: Gordon v. Starr, 2007 35527 (ONSC), para 23; Taylor v. Taylor, 2005 63820 (ONSC), para 3; Levely v. Levely, 2013 ONSC 1026, paras 12-13.

[44] Faced with a party’s failure to respect court processes, judicial responses should be “strong and decisive”: Levely.

[45] The Court must be alive to the risk that proceedings can be “hijacked by a party and transformed into a process for further victimizing the other party and the children in their care”: Levely.

[46] Court orders are not “suggestions”. A “resentful spouse is not above the law”: Taylor.

[47] Rule 1(8) of the Family Law Rules specifically provides that where a party has failed to comply with a Court Order, the Court may make any Order it considers necessary for a just determination of the matter, including an Order striking a party's pleadings pursuant to Rule 1(8)(c).

[48] Rule 19(10) empowers the Court to strike pleadings under Rule 1(8) for nondisclosure.

[49] The Court also has inherent jurisdiction to make an order that it considers appropriate to address a party’s failure to respect the Court process, including breach of an order. This authority includes the jurisdiction to strike pleadings: Hughes v. Hughes, 2007 10905 (ONSC), para 27.

[50] Under Rule 1(8.4), the striking of a party's pleadings denies the party any further notice of the steps in the case (except service of an Order), disentitles them to participate in a case, the case may be dealt with in the party's absence, and the matter may proceed to an uncontested trial. These consequences are automatic unless the Court orders otherwise.

[51] The Ontario Court of Appeal has upheld striking pleadings in cases of a “consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court”: Hill v. Gregory, 2018 ONSC 6847, paras 69-70; Ablett v. Horzempa, 2011 ONCA 633, para 7.

[52] Courts are rightly cautious about striking pleadings in family matters involving parenting. Nevertheless, this remedy may be appropriate: Purcaru v. Purcaru, 2010 ONCA 92. Where a parent is unlikely to contribute in a productive manner to the trial and their past behaviour warrants striking their pleadings, that may justify a loss of the right to participate: Kim v. McIntosh, 2023 ONSC 356; Holden v. Ploj, 2023 ONSC 1287, paras 33-34.

[53] When considering Rule 1(8), courts often apply a three-stage process:

a. First, ask whether there is a triggering event that allows the Court to consider the wording of Rule 1(8);

b. Second, if the answer to (a) is yes, consider whether it is appropriate to exercise its discretion to not sanction a non-complying party; the onus is on the non-complying party to persuade the Court why it should escape a sanction;

c. Third, if the Court decides against exercising the discretion noted in (b), it retains very broad discretion as to the appropriate remedy.

Ferguson v. Charlton, 2008 ONCJ 1, para 64

[54] When deciding whether to strike pleadings, a court must consider if there are other remedies in lieu of striking pleadings that would suffice: Van v. Palombi, 2017 ONSC 2492, para 30; Giavon v. Giavon, 2020 ONSC 21, para 69.

Analysis

[55] Based on the account provided at paragraphs 13-24 of the Applicant’s factum, various judges of this court have warned and admonished Matthew in the most serious terms. Matthew offered almost nothing to rebut this account.

[56] Turning to the three-stage test for considering relief under Rule 1(8), I find the following:

Triggering Event

[57] I am satisfied that Matthew is in breach of the following orders:

a. Justice Nakonechny’s costs orders of respectively, $9,000 on April 4, 2024, and $7,500 on September 25, 2024;

b. Justice Nakonechny’s security for costs order in September 2024;

c. Justice Black’s February 2023 order preventing Matthew from attending at the matrimonial home;

d. Justice Black’s and Justice Brownstone’s orders restraining Matthew from communicating with the child’s daycare and school except in limited circumstances.

[58] I am satisfied that Matthew repeatedly brings motions for similar and previously dismissed relief without paying outstanding costs and/or without seeking the required leave of the Court. He has done so for this very motion.

[59] In a case like this, the sheer number of breaches makes it challenging to pinpoint a single triggering event. I am satisfied that Matthew’s failure to post security for costs by the time of the Trial Management Conference on February 12, 2025, suffices. He also failed to provide required financial disclosure by Friday, March 14, as specifically ordered in the TSEF.

Whether to exercise discretion

[60] Once a triggering event has been found, the burden shifts to the Respondent to persuade the court that it should exercise its discretion to not sanction them under Rule 1(8).

[61] Even though I permitted Matthew to make submissions, he did not meaningfully address the voluminous complaints made against him. He offered no reasons to think that he will abide by future decisions of this court, including at trial.

[62] While Matthew did not specifically address this portion of the test, I acknowledge that he did make an argument somewhat relevant to this question, in that he argued that “balance of convenience” favours him since he will suffer irreparable harm from a motion to strike while the Applicant will not suffer at all.

[63] Having reviewed the Applicant’s material, I am not persuaded by this argument. The record shows, clearly and convincingly, how the Applicant has suffered from Matthew’s behaviour. Her suffering is compounded the longer these proceedings go on.

[64] In 2023, Justice Kristjanson wrote that Matthew did not provide an adequate explanation for his failure to comply with prior court orders. She noted that he appears to believe that “those court orders were wrong and wants to argue that they should all be reversed, but that's not exactly how we do things in courts.”

[65] In March 2024, Justice Nakonechny wrote: “The Respondent has been instructed by other judges of this Court to modify his behaviour. He has not done so. In fact, it appears his aggression toward the Applicant has escalated.”

[66] One such escalation is Matthew’s repeated threats to report Lorena to her professional regulator and to police. Justice Kristjanson noted this in an oral ruling delivered in June 2023:

In addition, she [the Applicant] points to the [Respondent's] email with the offer sent on May 23rd, which essentially offer – indicates that by accepting the offer, Ms. Mason would be avoiding criminal charges, as well as difficulties with her professional regulator.

Threatening criminal proceedings or professional regulatory proceedings is an example of behavior carried out with an intent to inflict harm to the other party, which is a factor in finding that a party acted in bad faith[.]

[67] I am satisfied that Matthew did not stop these threats even after Justice Kristjanson’s pointed comments. I am also satisfied that Matthew has threatened the Applicant’s law firm.

[68] Matthew’s application for leave to appeal seeks to remove Epstein Cole as counsel of record. To the extent that this request is related to Matthew’s complaint against Justice Nakonechny, it is specious.

[69] To argue, as Matthew did, that the Applicant essentially has nothing to lose compared to him, betrays an alarming lack of insight.

[70] I find that there is no basis to refrain from imposing a sanction.

The Appropriate Remedy

[71] The Applicant has satisfied me that this is one of those rare cases where it is appropriate to strike Matthew’s pleadings. I am further satisfied that it is appropriate to do so notwithstanding the parenting issues to be decided.

[72] I am satisfied that Matthew has used the court process to threaten Lorena. For example, he withheld a routine travel consent unless Lorena accepted “settlement proposals”. While he eventually relented, he was found liable for costs for the resources required to take him to To Be Spoken To Court.

[73] The Applicant gave a harrowing account of Matthew’s behaviour after she obtained an order for exclusive possession of their home. The Applicant deposes that Matthew:

a. destroyed furniture he was required under court order to leave behind and left the broken pieces strewn about the house;

b. removed the knobs and runners from the drawers of dressers in the home so that Lorena could not use them;

c. left dog feces and garbage all over the house, including Katie's room;

d. unplugged Lorena's chest freezer, causing all of the food to go to waste;

e. allowed his dog to urinate on mattresses and chew Lorena and Erin's belongings; and

f. destroyed and burned Lorena's personal documents and possessions that he was Ordered to return to Lorena in the fire pit in Lorena's backyard.

[74] The above account, in part, is why Justice Nakonechny granted a restraining order against Matthew on March 12, 2024.

[75] One of the factors to be considered before striking pleadings is whether a lesser remedy might be appropriate. In this case, all of the relevant lesser remedies have already been imposed: costs; security for costs; and disentitling a party from future relief. None have had the desired effect on Matthew. I am satisfied that giving him directions on how to participate in a future proceeding, Holden v. Ploj, 2023 ONSC 1287, paras 33-34, is unlikely to have an effect, either.

[76] There is a 7-day trial scheduled for May. Matthew is seeking joint decision-making and a shared parenting schedule. I am satisfied that he has not had any parenting time with the parties’ child since February 2024. In September 2024, Justice Nakonechny observed that Matthew’s parenting claims have little merit. Her Honour went so far as to say that Matthew’s claims were being pursued in order to cause financial and emotional harm to Lorena. This is an extremely sobering observation that I am satisfied would not have been made lightly.

[77] The record is replete with instances of Matthew’s refusal to obey this Court. At the hearing, Applicant’s counsel said: “He will not stop.”

[78] I agree. Matthew’s conduct requires enormous time to respond to his various legal manoeuvres. The waste of judicial and counsel resources is egregious.

[79] Family law proceedings engage some of the most difficult issues a person can face in their life. But no one is above the law. The family law system rightly makes allowances for parties who act in good faith and make efforts to comply with the rules. It just as assuredly must respond to those who display disregard for the court and create enormous harm to others. Regrettably, I conclude, Matthew is such a person.

[80] I find that Lorena has more than met the test for striking out Matthew’s pleadings and setting this matter down for an uncontested trial.

Order

[81] In conclusion, I make the following order:

a. The Applicant’s motion is granted as follows:

i. The Respondent, Matthew Thompson's, claims are struck pursuant to Rule 1(8) of the Family Law Rules based on his failure to comply with Court Orders;

ii. The Applicant, Lorena Mason, may proceed with this case by way of an uncontested trial on the basis of affidavit evidence or as this court otherwise directs, pursuant to Rule 1(8.4) of the Family Law Rules;

iii. The Respondent, Matthew Thompson, is not entitled to any further notice of steps in this case and is not entitled to participate in a trial of this matter in any way; and

iv. The Respondent, Matthew Thompson’s, consent shall not be required before the Applicant may take any further steps in this case, and Orders may be issued without his participation or approval as to form and content.

b. All of the Respondent’s claims for relief on this motion are dismissed.

c. Costs of this motion are reserved to the trial judge.

Natasha Mathen
Date: March 18, 2025