Court File and Parties

Court File No.: FC-20-00000730

Court: Superior Court of Justice

Between:

Mary Maidei Dube
Applicant

-and-

Christopher Tulani Dube
Respondent

Reasons for Decision

Delivered by P. Roger
On January 30, 2025, at Ottawa, Ontario

Appearances

• P. Liston, Counsel for the Applicant
• J. Solomon, Counsel for the Respondent

Table of Contents

• Exhibits
• Reason for Decision

Exhibits

Exhibit Number	Entered on Page
1	20

Transcript Ordered: February 3, 2025
Transcript Completed: February 7, 2025
Ordering Party Notified: February 7, 2025

Legend

• [sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
• [ph] – Indicates proceeding word has been spelled phonetically.

Reasons for Decision

Friday, January 30, 2025

ROGER, J. (Orally):

The Applicant’s motion seeking to strike the Respondent’s pleadings and seeking other relief is dismissed, essentially on the basis that it is disproportionate to the circumstances of this case.

Striking a pleading is not an order to be made lightly. It is in the discretion of the court to order in limited and exceptional circumstances where no other remedy would suffice.

Here, we have imperfect and late compliance with court orders, but we have new counsel who has recently produced, albeit late, a substantial amount of disclosure. Some disclosure is still outstanding but for most of that a sufficient explanation has been provided. I find, consequently, that it would be disproportionate to make an order striking the pleadings in these circumstances.

With regards to child support and s. 7 expenses not being fully paid, a temporary order is in place and should be fully complied with. At the moment, the imperfect compliance with the child support and s. 7 order is not sufficient from my perspective to tip the balance in favour of striking the pleadings because payments are made, but the Respondent should fully comply with that order as soon as possible in order to avoid this being adversely revisited in the future.

Further, still with regards to Section 7 and child support, at my suggestion the parties have agreed to pay out of trust from the proceeds of the sale of the matrimonial home an amount of $25,000 to each party, with $10,000 of the Respondent’s $25,000 share to be paid to the Applicant for outstanding child support and Section 7 expenses, on a without prejudice basis, to be adjusted or equalized at a later date.

The facts with regards to the Zimbabwe property and with regards to the 4885 Hawthorne Road property in Ottawa are very much in dispute and no order can or should be made today with regards to these properties. Today’s motion was not a summary judgment motion and the issues relating to these properties are better to be decided at trial on a fulsome record.

With regards to questioning of the owners of the Hawthorne Road property, additional efforts are required in the form of additional searches relating to the ownership of that property or in the form of questioning of the Respondent before an order for questioning of unknown third party owners of this property is considered.

Similarly, with regards to the orders sought for the banking records and CRA documentation, the evidence does not support such an order being required at this time, nor is it clear to me that such an order is possible or that it should be made without notice to these institutions.

With regards to costs, the Applicant was not successful on this motion and much of what was sought could more effectively have been addressed at a case conference. In fact, Justice Engelking is case managing this matter, and the parties do not remember when they were last before her.

Nonetheless, I understand the Applicant’s frustration with the late disclosure and with not receiving all of the child support and s. 7 amounts previously ordered. Although this could have been handled at a case conference, and although the other issues are issues for trial as indicated above, this is nonetheless an example of when an unsuccessful party should receive costs.

Outstanding disclosure was provided late and after the motion was served, and a child support order is not fully complied with. Consequently, some costs should nonetheless be paid to the Applicant.

The Applicant seeks $3,500 in costs. That is a reasonable amount for the work that was done on this motion and the time required for this motion. Considering that she was not the successful party, I will reduce that amount to $3,000, payable for the costs of this motion by the Respondent to the Applicant within the next 30 days.

Considering that the parties have had difficulties with production and considering that they have not used the possibility of case conferences available to them in the recent past, I will make procedural orders, attempting to assist the parties to streamline this matter to some resolution or trial.

The following is ordered:

(i) The Applicant’s motion is dismissed.

(ii) Within 30 days, each party shall disclose to the other a list of all alleged outstanding disclosure that he or she seeks.

(iii) Within 45 days of receiving this list of alleged outstanding disclosure, the party receiving such list shall exert all best efforts to obtain that information and provide same to the other side, or if not possible, to provide a satisfactory explanation of efforts made and why the information is not being provided.

(iv) Questioning is allowed for three hours per party, to be completed prior to June 30, 2025.

(v) Any and all undertakings given at questioning or advisements shall be answered within 30 days of the questioning.

(vi) A settlement conference shall be scheduled for the next available date after August 31, 2025.

(vii) If the parties have any issues arising from this order, compliance with court orders, or required or outstanding disclosure, they shall firstly bring a case conference before Justice Engelking to obtain some direction about how best to proceed.

(viii) On consent of the parties, $25,000 shall be paid out of the funds held in trust from the sale of the matrimonial home, to each of the parties, however with $10,000 of the $25,000 payable to the Respondent to be paid to the Applicant, on a without prejudice basis, for arrears of child support and s. 7 expenses, to be adjusted or equalized at a later date, either on consent or at trial.

(ix) Costs of this motion are fixed at $3,000, all inclusive, payable by the Respondent to the Applicant within the next 30 days.

Certificate

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

Form 3 – Electronic Certificate of Transcript – September 1, 2022