Ontario Superior Court of Justice

Court File No.: FC-22-30
Date: 2025-05-12

Parties

Between:
Annette M. Johnson, Applicant
– and –
Gregory B. Castellano, Respondent

Applicant Counsel: L. Oliver
Respondent: Self-represented

Heard: April 28, 2025
Judge: Brian Holowka

Reasons for Decision

On Motion to Strike

Overview and Request to Adjourn

1On July 13, 2022, the Respondent, Mr. Castellano, commenced a motion to change the final order of Quigley J., dated November 6, 2009. He seeks an order setting aside Quigley J.’s order, or in the alternative, changing various aspects of his order related to child support, including a reduction of significant outstanding arrears.

2The Respondent’s motion to change has made little progress. The Applicant, Ms. Johnson, has now brought a motion for an order dismissing the motion to change as a result of the Respondent’s failure to comply with the orders of MacEachern J., dated August 28, 2024, September 11, 2024, and December 18, 2024. The Applicant also cites longstanding non-compliance by the Respondent.

3The Respondent made oral submissions to adjourn the motions. No written notice or documentation was served and filed in support of the adjournment request. Orally, the Respondent advised the court that he was seeking to adjourn the motions scheduled for today because of his mental health issues. He also referred to significant stress flowing from other proceedings. He explained that he is presently before the Law Society of Ontario (LSO) Tribunal and is awaiting a decision. Additionally, he advised the court that he is facing criminal charges and only recently retained counsel to defend him on those allegations.

4The Respondent explained that he did not serve and file any affidavit material detailing his mental health difficulties because he is concerned that the LSO will obtain it and use it against him in the ongoing proceedings. He stated that he could provide viva voce evidence on the issue of his mental health because he did not believe that the LSO would go to the trouble of ordering a transcript. Ultimately, I was of the view that there was little difference between the provision of evidence in affidavit form or viva voce. Both are on the public record.

5MacEachern J. set out, in an endorsement dated December 18, 2024, a detailed schedule for the serving and filing of materials for this motion. The timelines were set with the input of the parties. The Respondent has not complied with this endorsement or taken any steps to address this non-compliance.

6In the circumstances set out above, the adjournment request was denied. A costs award would not fully address an adjournment. Counsel for the Applicant advises that a past costs award has not been paid. Given the non-compliance by the Respondent with the December 2024 endorsement of MacEachern J., the only motion that is capable of proceeding is the Motion to Strike motion brought by the Applicant.

7There is only one issue to be decided by the court: should the Respondent’s motion to change be struck because of his failure to comply with prior court orders in this case?

8For the reasons that follow, I have concluded that, having regard to the exceptional circumstances of this case, an order striking the Respondent’s motion to change must be granted.

Analysis

9The Respondent has demonstrated a persistent and ongoing failure to provide financial disclosure, as well as a repeated failure to comply with court orders.

10The legal considerations relevant to the question before me were set out in paragraphs 11 to 15 of Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6 as follows:

a. The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

b. Failure to abide by this fundamental principle impedes the progress of the action, causes delay, and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice as unnecessary judicial time is spent and the final adjudication is stalled.

c. Financial disclosure is automatic. It should not require repeated court orders to obtain production.

d. Rule 1(8)(c) of the Family Law Rules, O. Reg. 114/99, provides that if a person fails to obey an order in a case the court may deal with the failure by making any order that it considers necessary for a just determination by striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or other document filed by a party.

e. The power to strike out pleadings is to be used sparingly, only in exceptional cases, and only where no other remedy would suffice.

11In my view, the exceptional standard described above is met. I come to this conclusion considering the following factual findings:

a. The parties separated in January 2006. Support issues were settled in 2009 and resulted in an order being made by Quigley J. on the consent of the parties. Support arrears were fixed at $30,000, repayable at $500 monthly. Ongoing support was set based on an imputed income of $75,000, commencing December 1, 2009. As a result, the child support for the three children was fixed at $1,432 monthly.

b. The order of Quigley J. required detailed annual income disclosure as well as the production of specified LSO filings of the Respondent.

c. The Respondent has never voluntarily paid any support. Arrears now total more than $200,000. Proceedings by the Family Responsibility Office (FRO) were slow to progress.

d. The Respondent’s motion to change was commenced on July 13, 2022 and sought to vary the November 2009 final order with respect to child support. The motion resulted in delays in FRO proceedings because of ongoing default proceedings.

e. The Respondent has made inadequate financial disclosure of his income in support of his motion to change. MacEachern J. made three orders to move the matter forward and to compel financial disclosure.

f. The August 28, 2024 order of MacEachern J. required the Respondent to serve and file a detailed affidavit and financial statements addressing certain issues. The Respondent failed to comply with the November 1, 2024 deadline set by MacEachern J. The disclosure was never served or filed. In her endorsement, MacEachern J. stated:

[T]the Respondent states that he has not filed his tax returns since 2019, but he must do so immediately (see also Justice Swartz’s order from March 17, 2022), and his failure to do so will not justify a breach of this order. The time periods herein are intended to allow the Respondent more than ample time to file any missing tax returns, which should have been filed long before today’s conference, given this is his motion to change.

g. The order of MacEachern J. included a provision for the Respondent to pay costs immediately. These costs have not been paid to the Applicant.

h. The order of MacEachern J. specified that the application could return to court to seek to have the Respondent’s pleading struck for non-compliance if the specified deadlines were not met.

i. On September 11, 2024, MacEachern J. made a further order to address the Respondent’s failure to comply with previous disclosure obligations and orders, and to remedy the lack of complete disclosure. MacEachern J. made an additional detailed order for specified disclosure. The Respondent did not provide any disclosure in response to this order.

j. On December 18, 2024, MacEachern J. made a further order to attempt to advance the matter and ensure that appropriate financial disclosure was made. The endorsement from that date stated as follows:

Given the parties' respective motions and the respondent's failure to provide the disclosure and abide by the process set out in my previous endorsements, including serving and filing all of his affidavit evidence and an updated financial statement on which he relies in support of the orders that he seeks in his motion to change, I am setting a timetable for the parties' respective motions to be argued. These directions were discussed with the parties today, and the timelines have been set with input from the parties.

I have reserved today's costs to the motion's judge with the following direction: The respondent is not entitled to today's costs. The applicant may be entitled to today's costs depending upon whether her position on the motion that the respondent has not complied with the previous orders of August 28 and September 11, 2024, without reasonable excuse, is established on the motion.

k. The endorsement set out further steps to be taken by the parties. Steps required of the Respondent included the following:

• By January 14, 2025, the respondent shall serve and file his further affidavit in support of his motion dated December 17, 2024, and in response to the applicant's motion, which shall include his proposed amended motion to change pleading.
• By February 5, 2025, the respondent shall serve and file his reply, proper reply only, to the applicant's response to his motion.
• Factums shall be served and filed in accordance with the rules.
• Neither party shall be permitted to rely on any material at the motion that is not served in accordance with the above timelines except with leave of the presiding judge or the consent of the other party.

The Respondent failed to comply with the January 14, 2025 deadline. Consequently, the further deadlines imposed by MacEachern J. could not be followed.

12The Respondent submits that he was unable to comply with the orders of MacEachern J. for two reasons. First, he states that he was unable to comply with the multiple orders for disclosure as he had no access to his computer and its significant store of information, as it had been seized in July 2024 by the police in relation to criminal charges he now faces. He submits that the computer contained all his income tax returns, trust and fee journals, and bank reconciliations. Second, he submits that his mental health renders him incapable of filing evidence regarding this motion. He submits, without providing any evidence, that he was recently confined against his will at the Kingston General Hospital because of mental health concerns.

13Additionally, the Respondent submits that the Applicant has not demonstrated the exceptional circumstances required to permit the court to strike the Respondent’s pleading.

14Respectfully, I disagree.

15The record of non-compliance before me demonstrates a blatant and flagrant disregard of the orders. In my view, the conduct of the Respondent is willful.

16I do not accept that the seizure of the Respondent’s computer by the police prevented him from complying with the orders of MacEachern J. There is no evidence presented by the Respondent of any effort to comply with these orders. The Respondent has presented no evidence regarding any attempt to obtain the material required to comply with the financial disclosure obligations from a source other than his computer, or any efforts to obtain this information from his computer, presently in the possession of the police.

17The deadlines set out by MacEachern J. in August 2024 were not respected despite generous timeframes to do so. The deadlines established in September 2024 were not complied with by the Respondent, so new deadlines were established in December 2024 with input from the parties. Again, they were not respected by the Respondent. The Respondent has been given multiple opportunities to comply. There is simply no reasonable excuse for the non-compliance based on the evidence before me.

18The Respondent, as a lawyer, is fully aware of his obligations to comply. He “should expect to be held to a more punctilious adherence to court rules and court orders than might be a lay party”: see Powers v. Powers, 2004 ONCJ 245, para 38.

19I am satisfied that there is no other appropriate order in the circumstances other than an order to strike the Respondent’s motion to change. A significant costs award would have no effect in these circumstances, considering the Respondent’s failure to comply with the cost award of August 28, 2024 and his overall history of non-compliance with court orders.

Conclusion

20I am satisfied that the striking of the motion to change in its entirety is appropriate, given the exceptional circumstances before me. The non-compliance by the Respondent can be fairly described, in my view, as egregious and shocking. An order is granted to strike from the record the Respondent’s motion to change, dated July 13, 2022.

Costs

21The Applicant and the Respondent may serve and file brief written submissions on the issue of costs, in electronic format, of no more than three pages in length, plus a bill of costs. The Applicant has 20 days from the date of the release of this decision to do so. The Respondent shall have 20 days thereafter to respond. If submissions are not received by the parties within the specified deadlines, I will conclude that the party or parties in question do not wish to make submissions, and I will determine the issue of costs without the written submissions.

Brian Holowka