Court File and Parties

Court File No.: FS-24-00041225-0000 Date: 2025-10-08 Superior Court of Justice - Ontario

Re: Lindsay Allard, Applicant And: Boris Cho, Respondent

Before: Mathen J.

Counsel: Tanya Stroedel, for the Applicant Boris Cho – self-represented

Heard: October 7, 2025

Endorsement on Motion

Overview

[1] The Applicant, Ms. Allard, brings a motion under Rule 1(8) of the Family Law Rules, O. Reg. 114/99.

[2] At the beginning of the motion hearing, Ms. Allard withdrew a request to find the Respondent, Mr. Cho, in contempt.

[3] Mr. Cho attended the hearing but did not file any materials. He agreed to be sworn in so that I could question him.

[4] Ms. Allard seeks the following relief:

a. An order striking Mr. Cho's pleadings

b. An order to set the matter down for an uncontested trial

c. A penalty in the amount of $5,000

d. Costs in the amount of $6,142.68

[5] Ms. Allard's motion is granted in part. Mr. Cho's pleadings shall be struck, and the matter set down for an uncontested trial. I decline to order a penalty. Ms. Allard is entitled to most of her costs.

Background

[6] The parties began cohabiting in 2008 and were married in 2016. They separated on October 15, 2020. Mr. Cho left the matrimonial home in February 2021. There is one child of the marriage who is 10 years old.

[7] After negotiations proved unsuccessful, Ms. Allard served her pleadings on Mr. Cho in March 2024.

[8] Although Mr. Cho sent his answer to Ms. Allard, he has not filed it with the court.

[9] Ms. Allard states that Mr. Cho has breached, inter alia, the following court orders:

a. An order dated October 18, 2024, requiring him to file a request for information and respond to one from Ms. Allard (Shin Doi J. Order). This order followed a case conference for which Mr. Cho filed no materials.

b. An order dated December 12, 2024, that Mr. Cho pay temporary child and spousal support commencing January 1, 2025 (Nakonechny J. Support Order). This order followed a motion for which Mr. Cho filed no materials but was permitted to make submissions.

c. An order dated February 5, 2025, that Mr. Cho pay costs for the above motion in the amount of $2,671.00 within 30 days (Nakonechny J. Costs Order).

d. An order dated March 17, 2025, that Mr. Cho answer an outstanding request for information and serve and file a sworn financial statement within 60 days (Kraft J. order). This order followed a settlement conference for which Mr. Cho did not produce a conference brief or a sworn financial statement.

[10] At the settlement conference described above, Justice Kraft gave leave for Ms. Allard to seek Rule 1(8) relief if Mr. Cho failed to abide by Justice Kraft's order.

The Law

[11] Court orders are not optional. Non-compliance must have consequences: Gordon v. Starr, at para. 23; Taylor v. Taylor, at para. 3; Levely v. Levely, 2013 ONSC 1026, at paras. 12 and 13.

[12] Faced with a party's failure to respect court processes, judicial responses should be "strong and decisive": Levely, supra.

[13] 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, supra.

[14] Rule 1(8) of the Rules states 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).

[15] 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, para. 27.

[16] 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.

[17] 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.

[18] Courts are rightly cautious about striking pleadings in family matters involving parenting. Nevertheless, such a 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.

[19] 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

[20] 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

[21] While I agreed to hear from Mr. Cho, given that he did not file any materials, the substance of Ms. Allard's allegations against him are uncontested.

[22] For clarity, however, Mr. Cho acknowledged the following:

a. He has not filed his Answer as required under the rules.

b. He has not filed a sworn financial statement as ordered by Justice Kraft.

c. He has not paid child support as ordered by Justice Nakonechny.

d. He has not paid costs as ordered by Justice Nakonechny.

[23] Therefore, I am satisfied on a balance of probabilities of the first step in determining a remedy under Rule 1(8), namely, that there is a triggering event due to Mr. Cho's breaches of several court orders.

[24] The second step is deciding whether to exercise my discretion not to impose a sanction. To assist my analysis, I decided to hear evidence from Mr. Cho.

[25] For the following reasons, I have decided against exercising my discretion:

a. Mr. Cho outlined several personal and health issues he is enduring. While I appreciate that he has been having a difficult time, I do not find those issues to excuse his repeated failure to abide by the rules and, especially, obey court orders.

b. Mr. Cho says that, initially, he did not pay the temporary support he was ordered to because he lost his job. However, he acknowledged that, two months ago, he obtained new employment with an annual salary of $120,000. Yet he still has not paid any child support. Mr. Cho says he is having difficulty making ends meet due to his high rent and non-insured medication. Without a sworn financial statement, I cannot properly assess his situation. That said, the total support ordered by Justice Nakonechny is just over $750 a month. It is troubling that Mr. Cho continues to refuse to pay that amount of support after he secured a job that pays him $120,000 a year.

c. Mr. Cho appears to be educated and well-spoken. He has a laptop computer. He does not have a reasonable explanation for why he has been unable to file his answer with the court.

d. Mr. Cho does not have a realistic plan for how he will address the effect of his breaches. He says that he intends to save up so he can hire a lawyer. He does not appear to recognize that he needs to be able to comply with the rules immediately.

e. Mr. Cho has had numerous chances to bring himself in compliance. This court has extended to him a significant amount of grace. I find it would be unfair to Ms. Allard to give Mr. Cho another chance.

[26] Mr. Cho has not persuaded me that I should refrain from imposing a sanction.

[27] That brings me to the third step of the analysis, which is the appropriate remedy.

[28] For the following reasons, I have decided that the only just remedy is to strike Mr. Cho's pleadings and direct this matter to an uncontested trial:

a. The matters in issue are straightforward. Importantly, parenting is already shared. Since I do not have Mr. Cho's pleadings, I am unsure what his position on parenting might be. But, based on the representations of Ms. Allard's counsel, I am satisfied that any outstanding parenting issues can be dealt with by the trial judge who has the discretion to require additional information from Mr. Cho.

b. Mr. Cho's inability to comply with the most basic rules regarding, for example, filing materials, makes me concerned that he will continue to create delay.

c. At the hearing, while Mr. Cho appeared remorseful, he did not seem to grasp the gravity of the situation. That may be because of his personal difficulties. Nevertheless, I am satisfied that imposing any lesser remedy would not ensure that this matter proceeds in an efficient and just manner.

[29] In the circumstances, given the repeated breaches of court orders, and Mr. Cho's lack of reassurance that he could productively engage in the case if given the continued opportunity to do so, I find on a balance of probabilities that the appropriate remedy is to strike his pleadings and direct this matter to an uncontested trial.

[30] Ms. Allard also requested a penalty of $5,000. I decline to make that order. Given that Mr. Cho's pleadings will be struck, I find a further penalty to be unwarranted.

[31] Ms. Allard is entitled to her costs. She filed a bill of $6,142.68. However, given that some of her materials dealt with a contempt remedy that was not pursued, I will award her costs fixed in the amount of $5,500.

Order

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

[33] The Applicant Lindsay Allard's motion is granted in part:

a. The pleadings and supporting materials of the Respondent Boris Cho are struck.

b. The Applicant's matter shall be set down for an uncontested trial.

c. The Respondent shall pay to the Applicant costs fixed in the amount of $5,500 inclusive of disbursements and HST, within 60 days.

d. Counsel may forward a draft order for my signature.

Mathen J.

Date: October 8, 2025