CITATION: Jogina v. Jogina, 2026 ONSC 288
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOGINA, KELLY KERSI
Applicant
– and –
JOGINA, DILNAWAZ
Respondent
A. Gill, for the Applicant
N. Reise Liete, for the Respondent
HEARD: September 10, 2025
REASONS FOR DECISION
EMERY J.
1The applicant father, Kelly Kersi Jogina (‘Kelly”) brings a motion to set aside the Dismissal Order issued administratively on February 5, 2025.
2The Respondent Dilnawaz (“Dilnawaz”) brings a cross-motion that is contingent on whether Kelly’s motion is granted. In that event, the cross-motion seeks an Order striking his pleadings for non-compliance with prior Orders of the court.
3Each motion deals with cause and effect. The issue of delay looms large as the cause, and prejudice to the parties as the effect of that delay under the legal test for each motion. The possible outcome of either motion is the end of Kelly’s case against Dilnawaz.
BACKGROUND FACTS
4Kelly and Dilnawaz married on January 2, 2011 and separated on June 17, 2017. They have two children, Kaden born August 27, 2011 (currently 14 years old) and Ethan born September 1, 2013 (currently 12 years of age).
5Kelly commenced his application on December 20, 2017. In the application, he claimed a divorce and made claims for property including an equalization payment, spousal support, custody (now decision-making responsibility) of the children and child support, among other Orders.
6Dilnawaz filed an Answer in which she responded to the claims made by Kelly. In that part of the Answer provided for the Claim by Respondent, Dilnawaz asked the Court for various Orders including, among others, a divorce, property rights, parenting Orders and child support.
7On commencing the case, Kelly short served Dilnawaz with a motion returnable on December 22, 2017 for parenting time. Bielby J. triaged the motion and put it over to an early case conference on January 25, 2018.
8At the early case conference on January 25, 2018, Bielby J. made an Order requiring Kelly to “serve and file a fresh financial statement and deliver his financial disclosure before the next family conference”. He also made a mutual non-depletion Order to apply to both parties.
9The next court event was a case conference on March 28, 2018 before Snowie J. Kelly had not complied with the disclosure Order that Bielby J. had made at the early case conference on January 25, 2018. Snowie J. made an Order for questioning. She also gave Kelly a further 10 days to comply with the disclosure Order of Bielby J., failing which Dilnawaz would be permitted to bring a motion for contempt on two days notice and/or a motion to have Kelly’s pleadings struck.
10At the case conference, Snowie J. made a detailed list of the disclosure Kelly was to make and attached that list as Schedule A to her Order. This disclosure required Kelly to provide, among other things, all his historical bank statements for all his accounts and loans. This Order specifically included disclosure of the statements of his Tangerine Savings account *7090 and Tangerine TFSA *9630 from February 1, 2016 to the present.
11Kelly breached the non-depletion Order of Bielby J. by reducing the amounts on deposit in this Tangerine accounts from $135,316.98 to $30.88. In addition to breaching the mutual Order for the non-depletion of assets, these funds are relevant to the case because Kelly had been advised that Dilnawaz was claiming an interest in those funds for the repayment of a loan she had made to Kelly for $150,000 to start a business. The letters from Dilnawaz’s counsel requesting this disclosure and for Kelly to return the funds went unanswered.
12As a result of Kelly’s breach of the non-depletion Order, Dilnawaz brought a motion without notice that was heard by Sproat J. on April 13, 2018. Sproat J. stated in his endorsement that “the evasive conduct of the Applicant and disregard of court orders leads me to conclude that an ex parte order is appropriate”. Sproat J. made an Order for the preservation of assets at the time, subject to the argument of that motion on notice. As a term of that Order, Kelly was required to provide a detailed accounting of all transactions associated with the two Tangerine accounts as of February 28, 2017, to trace all funds and to provide evidence of what that tracing revealed.
13On May 11, 2018, the motion to preserve assets was argued on notice before Tzimas J. Her Honour varied the Order that Sproat J. had made by allowing Kelly to access funds for the payment of normal or day to day living expenses. Her Honour’s Order permitted Kelly to use his bank card for transactions under $500, and to pay specific bills. The Order then required Kelly to meet his disclosure obligations, providing that “Insofar as ongoing disclosure is concerned, the Applicant shall continue to meet his obligations and commitments in his lawyer’s communication of May 8, 2018. If disagreements persist, the parties may bring a motion as they see fit and appropriate”.
14At the case conference on January 25, 2018, an Order was made to invite the Office of the Children’s Lawyer (the “OCL”) to prepare a report under s. 112 of the Courts of Justice Act. The OCL accepted the referral in February 2018. The OCL issued its interim report on July 25, 2018, noting the following with respect to verified claims of domestic violence committed by Kelly:
“Evidence gathered from various professional collateral and independent witnesses suggest that Mr. Jogina was violent and abusive towards Mrs. Jogina. Mrs. Jogina made detailed disclosures about the abuse to her physician, Dr. Palumbo, who documented the disclosures. The disclosures are consistent with Mrs. Jogina’s disclosures about the abuse to others, and witnesses’ observations of the abuse. Mrs. Jogina disclosed the abuse to the first nanny, Jeaneanne Sardi, who saw bruises on Mrs. Jogina. Ms. Sardi also overheard verbal arguments between the parties and on one occasion during a fight, heard Mrs. Jogina say to Mr. Jogina ‘stop it you’re hurting me’. The nanny was present in the home during the October 31, 2017 incident where Mr. Jogina was charged with assaulting Mrs. Jogina. She heard Mrs. Jogina saying ”stop it you’re hurting me” and saw Mr. Jogina pushed up against Mrs. Jogina on the wall. Credit Valley Hospital Emergency Department records from October 31, 2017 indicated that Mrs. Jogina had small bruises on her upper arm, after the domestic incident with Mr. Jogina. Mrs. Jogina disclosed verbal abuse and controlling behaviour to her therapist, Sharon Lowe. Neighbour Wendy Evans reported hearing Mr. Jogina talking down to Mrs. Jogina. Neighbour Colin Towe reported witnessing the aftermath of a conflict where Mr. Jogina threw food on Mrs. Jogina and the children. Mrs. Jogina disclosed to him about the ongoing abuse in the relationship.”
15The interim OCL report made the recommendation that Dilnawaz have sole custody of the children, and that they reside primarily with her. The report also observed that Kelly should pursue counselling to address his abusive and controlling behaviors towards Dilnawaz. The report contained the recommendation that, for the interim period, Kelly’s access (parenting) of the children should be fully supervised with normative access (parenting) restored once Kelly has received some counselling and feedback is known about his progress.
16After the interim report was released by the OCL in July 2018, Kelly stopped exercising his supervised parenting time. He scheduled a motion on parenting issues returnable on October 22, 2018, but he did not serve any material for this motion or appear before the court on that date. I was the presiding judge that day and I made an Order that Kelly could not bring any further motion without first obtaining my approval of any proposed hearing date.
17On November 19, 2018, a case conference was scheduled that was to focus on parenting issues. Kelly attended this conference without filing materials and asked that the conference be adjourned to a later date to be fixed. He had just discharged his lawyer and was looking for new representation. The case conference was therefore adjourned until new dates for conferences were released by the trial coordinator’s office in January 2019.
18Kelly stopped responding to the inquiries of the OCL. The social worker who was composing the OCL report contacted Kelly on three separate occasions between November and December 2018 without success. Ultimately, the OCL issued the final report in December 2018.
19After 2018, Kelly never rescheduled the case conference to discuss parenting issues prior to receiving the Notice of Approaching Dismissal from the court in 2024, nor did he reschedule or bring another motion on parenting.
20In March 2019, Kelly left Canada for India. He did not seek any parenting conference or motion after his departure.
21The last time Kelly saw the children of the marriage was at his mother’s funeral in 2020. It is unclear from the materials filed whether this funeral was held in Canada or in India. Kelly’s mother passed away in November 2020 and Dilnawaz permitted the children to attend the funeral under the supervision of her sister in December of that year.
22The court administration division in Brampton issued the Notice of Approaching Dismissal dated October 7, 2024 which was sent to the parties shortly thereafter.
POSITIONS OF THE PARTIES
23The parties have each filed affidavits that provide a diametrically opposed narrative of the facts in this case.
Kelly
24Kelly states that he did everything he could to avoid the dismissal of his application. Kelly relies upon the case of Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 for the four part test the court is to apply on a motion to set aside a dismissal of a family case.
25Kelly acknowledges that the last Order made in the case was the Order that I made on October 22, 2018.
26In his materials and in the submissions of counsel on the motion, Kelly states that he was the victim of physical abuse at the hands of Dilnawaz. He states that he has suffered from mental health issues ever since Dilnawaz started withholding the children from him for parenting time. He claims that he has suffered from Post Traumatic Stress Disorder (“PTSD”) as a result.
27Kelly also states that Dilnawaz has provided a false narrative about the marriage, the separation and his conduct since the breakdown of the family.
28To answer the allegation made by Dilnawaz that he relocated to India for an extended period of time, Kelly refutes that allegation. He states in his evidence that his trip to India in 2019 was necessarily extended because of restrictions on travel for reasons relating to COVID-19.
29In response to the cross-motion to strike his pleadings, Kelly states that his bank accounts have been frozen, and he could not provide the required disclosure for the last 7 years.
30Kelly asks the Court on both motions to set a settlement conference as soon as possible. He states that he will be seeking parenting time with the children even if his application is dismissed.
31While Kelly has not seen the children for 7 years except for a short time at his mother’s funeral, he states that he moved promptly upon receiving the notice of the administrative dismissal to schedule a settlement conference. Kelly outlined the chronology of events that followed receipt of that notice in his evidence:
a. He was served the Form 39 Notice of Approaching Dismissal dated October 7, 2024;
b. Within 60 days, on December 5, 2024, his counsel reached out to opposing counsel to inform her of the Form 39 Notice of Approaching Dismissal and to seek available dates for a settlement conference;
c. Opposing counsel responded on December 5, 2024 seeking the court’s availability for a settlement conference. Despite being on the record for over 7 years, there was no mention by either side that Justice Emery had been assigned to this matter as the case management judge;
d. On December 7, 2024, Kelly’s counsel provided opposing counsel with available dates for a case conference to be used as a placeholder date to prevent the matter from being dismissed. Kelly’s counsel booked a case conference for February 12, 2025;
e. On December 9, 2024, opposing counsel demanded the placeholder case conference be cancelled. Opposing counsel took action and requested that the settlement conference dates be booked with Justice Emery.
f. On December 11, 2024 the trial coordinator’s office emailed both counsel for available dates in January and February 2025.
g. After receiving no response from the opposing counsel for 22 days, Kelly’s counsel reached out once again on January 3, 2025 to obtain available dates for a settlement conference or confirmation that a date was being secured.
h. On January 7, 2025, opposing counsel provided availability for February/March 2025,
i. On January 13, 2025, an email was sent by Kelly’s counsel to the trial coordinator’s office to schedule a settlement conference date.
j. On January 30, 2025, opposing counsel emailed Kelly’s counsel to ask for an update on whether a settlement conference was scheduled and again requested the placeholder case conference date of February 12, 2025, be cancelled. Kelly’s counsel cancelled the case conference to avoid costs and waste of court resources.
k. On February 18, 2025, the trial coordinator’s office provided confirmation that a settlement conference had been scheduled for March 20, 2025, at 9:00 am.
l. The settlement conference on March 20, 2025, did not proceed before Justice Emery as the date had been inadvertently booked by staff after the application had been administratively dismissed on February 5, 2025. Justice Emery took that opportunity to timetable the two motions the parties intended to bring for the filing of the motion materials and for the motions to be heard together on August 15, 2025.
m. On August 15, 2025, the motions were adjourned to September 10, 2025, after a contested hearing. An agent for Dilnawaz’s counsel appeared that day to explain that she was ill that day. Kelly’s counsel opposed the adjournment, submitting that this was another delay tactic of the Dilnawaz, and arguing that Kelly would suffer severe prejudice because of the further delay in seeing his children.
32Kelly submits that he will face prejudice if his family law case is dismissed. He states that his rightful share to the matrimonial property will not be addressed by the Court. There has been no final equalization of the properties. Kelly states that his bank accounts are still frozen by Orders made in 2018.
33He also states that he has not seen his children for multiple years despite numerous requests he has made to Dilnawaz.
Dilnawaz
34Dilnawaz relies on FLR 25 to oppose Kelly’s motion to set aside the Dismissal Order. She also relies on the law developed on motions to set aside dismissal orders under Rule 48 of the Rules of Civil Procedure by analogy. She asks the court to apply the “Reid factors” from the case of Reid v. Dow Corning Corp., 2001 CarswellOnt 2213 as the correct test to apply on this motion. Those factors require evidence regarding:
a. An explanation of the moving party for the litigation delay;
b. inadvertence in missing the deadline;
c. that the motion is brought promptly; and
d. there is no prejudice to the defendant/respondent.
35Dilnawaz asks the Court to make the following findings on applying the Reid factors:
a) Kelly has provided no reasonable explanation for the delay in the litigation leading up to the dismissal;
b) The dismissal occurred through no inadvertence on Kelly’s part. He was fully aware of the delay;
c) Dilnawaz acknowledges that Kelly brought his motion promptly on learning of the dismissal; and
d) Kelly had the onus to show that Dilnawaz has not suffered prejudice because of his delay in moving the case to trial. He has not filed any evidence to rebut the presumption of prejudice the delay has caused Dilnawaz. He has not discharged that onus with evidence to the contrary.
36On other grounds, Dilnawaz states that Kelly has not filed any evidence of his PTSD or his state of mental health that precluded him from moving the case forward.
37Dilnawaz also states that Kelly stopped seeing the children after the settlement meeting with the Office of the Children’s Lawyer (the “OCL”) in July 2018. The void in time between the meeting with the OCL and the impending dismissal had nothing to do with the alienation of the children he has alleged against her, or any restriction on his return from India.
38Dilnawaz submits that Kelly’s conduct introduces a moral element into the mix. She alleges that she was the victim of Kelly’s abuse throughout the relationship. This abuse started in 2011 and took many forms: physical, verbal and emotional. Dilnawaz states that she was too afraid to report incidents of this abuse to the police.
39Three instances of Kelly’s abuse stand out. In 2014, Kelly assaulted Dilnawaz and broke two of her fingers. He also assaulted Kaden during this time. The police were called and Kelly was charged with criminal offences. Kelly later pressured Dilnawaz to sign a letter to the Crown with a request to drop the charges. Dilnawaz disclosed this abuse to doctors and the police who reported the matter to the Children’s Aid Society (the “CAS”), which became involved with this family in 2014 as a result. The CAS found that Dilnawaz’s allegation of the children being at risk of emotional harm due to exposure to domestic violence had been verified.
40After the parties separated in 2017, Kelly assaulted Dilnawaz again. On this occasion, Kelly was charged with a criminal offence once again and was bound by a restraining Order.
41York Regional Police contacted Dilnawaz shortly after Kelly’s arrest to inform her that a third party whom Kelly had met while in custody had made threats on Dilnawaz’s life. The police informed Dilnawaz that Kelly had apparently made a payment of $14,000 to this individual and had provided a map of the matrimonial home. According to the police, Kelly told the police he wanted this man to scare Dilnawaz into withdrawing the charges. However, this man had taken it upon himself to make threats about killing Dilnawaz. The police therefore worked with Dilnawaz to develop a Personal Safety Recommendation protocol. This protocol involved advising the children’s schools as well as the neighbors and Dilnawaz’s employer of the threat made against her.
42Dilnawaz did not learn of Kelly’s intention to continue his application until the Dismissal Order was issued by the Court office on February 5, 2025.
43With respect to Kelly’s motion to set aside the dismissal, Dilnawaz submits that Kelly is not a person of modest means as he portrays. She states that he owns real estate as listed in his financial statement. He has refused to make the required disclosure of all his assets as required by the Family Law Rules and pursuant to four Orders of the court.
44Dilnawaz states in her evidence and through the submissions of counsel that Kelly has not paid any child support for the children since the date of separation. Kelly does not dispute that statement of fact.
45Finally, Dilnawaz seeks an Order striking Kelly’s application for breaching prior court Orders made in the case. She has given evidence that unequivocally shows how Kelly has not complied with four court Orders made in 2018 by not making the required disclosure ordered and has breached the first Order for the non-depletion of assets. She submits that Kelly’s renewal of his application is disruptive to the routines of herself and the children who are now 11 and 13 years of age. This renewed litigation will place financial demands on her to fight a contested court case after it has lain dormant for so many years. Dilnawaz submits that these are triggering events that provide the court with the discretion to strike the application as appropriate relief, and will allow her answer to proceed on an uncontested basis.
ANALYSIS
Kelly’s Motion to set aside Dismissal Order
46This motion does not involve a noting in default or even a default judgment to set aside. This is a factual difference that separates the decision in Mountain View v. McQueen from the nature of the motion before the court. In this case, the court has dismissed Kelly’s application administratively for delay. The Reid Corning case provides the correct test for the Court to apply to the evidence in such a situation.
Explanation for litigation delay?
47I find that Kelly has not provided a satisfactory explanation, if any, of the reason for the delay in proceeding with his application. He has not moved the case beyond the case conference stage since the attendance of the parties before Snowie J. in 2018. It has now been 7 years from the time he last requested a conference with me as the case management judge in November 2019.
48As a result, I find that this factor must be decided in Dilnawaz’s favour.
Reasons given for missing deadline?
49I find that Kelly did not set the application down for trial, or even bring a motion on any issue for the entire period it has been outstanding. He has not asked for a conference to schedule next steps. It was Kelly’s responsibility to arrange for a settlement meeting and later a trial management conference to have a trial date set, or to have the application placed on an Assignment Court list.
50The delay in moving the application to trial is attributable to Kelly’s decision-making, and not due to inadvertence. I find that he has intentionally stalled his case, likely to let the 7 year period that banks store information to expire. If that is the case, he has intentionally let that time lapse so that non-parties can no longer retrieve those records to further frustrate the disclosure process. Kelly has ignored the family law process of attending conferences and either resolving issues or setting them down for a hearing. He has made this decision with a view to avoiding his own obligations under the law and pursuant to court Orders.
51However, Kelly is entitled to some recognition for taking steps when it came to his attention that the dismissal of his application was imminent. He has provided evidence that he attempted to arrange a settlement conference through his lawyer on or about December 5, 2024 after he received the Form 39 Notice of Approaching Dismissal. He encountered scheduling difficulties, first because he requested a settlement conference without ensuring it was before me as the assigned case management judge. Second, difficulties arose for calendaring reasons when February 12, 2025 was first booked as the date for a settlement conference, which was later replaced by March 20, 2025. The application was dismissed under the Notice on February 5, 2025 not through Kelly’s inadvertence, but as a result of the availability of Court time.
52For reasons relating to the availability of family conference dates in Brampton, Kelly did not miss the deadline for arranging a settlement conference at which he could have asked for an Order extending the time under the Notice. He put his mind to scheduling a settlement conference to take further steps in the application. While this is a technical reason to conclude Kelly intended to re-enter the litigation, it is enough to find this factor in his favour.
Was the motion brought promptly?
53Dilnawaz concedes that Kelly brought the motion to set aside the dismissal promptly on learning of it. This factor is found in Kelly’s favour.
Any prejudice caused to the respondent?
54Kelly has failed to file any evidence to rebut the presumption that Dilnawaz has suffered prejudice by the delay in moving his case forward. He has not adduced evidence that the reinstatement of the case will not cause Dilnawaz any prejudice if the dismissal is set aside. The question of prejudice is “a key, if not the key consideration on a motion to set aside a dismissal Order: Chrisjohn v. Riley, 2015 ONCA 713, at para. 36. It was Kelly’s onus to discharge, and he has failed to discharge that onus.
55To the contrary, Kelly states that he is the party who will be prejudiced if the dismissal is not set aside. This factor does not include any consideration of the prejudice to the party responsible for the delay. It is implicit in the other factors for the court to consider that the efforts made by the responsible party will show the prejudice they will suffer in all the circumstances if the case does not proceed on the merits. Conversely, evidence of all inaction will show what little prejudice, if any, the party will suffer if the dismissal stands.
56I find that Kelly has also failed to address why it would be in the best interests of the children that the dismissal be set aside. He has not made any attempt to see the children for almost 5 years since they saw each other at his mother’s funeral. The report of the OCL discussed at the OCL meeting in July 2018 recommended that his parenting time be supervised at first, but he did not follow up with any motion to obtain parenting time to exercise. He now alleges that he suffers from PTSD or other mental health issues because of the absence of parenting time without any expert report or other evidence besides his own words.
57I find as a fact that Kelly has not discharged his onus of rebutting the presumption that the reinstatement of the application will not cause Dilnawaz any prejudice.
Result
58Kelly has failed to satisfy two of the four Reid factors to set aside the administrative dismissal of his application. However, the dismissal may have been avoided if he had been able to schedule a settlement conference before February 5, 2025. While this was a close call to make, especially given my findings that Kelly has not provided an acceptable explanation for the litigation delay in moving the case forward and not showing Dilnawaz will suffer no prejudice, Kelly took steps to revive the application just in time. His motion to set aside the dismissal is therefore granted.
Cross-Motion to strike pleadings
59The power of the Court to strike pleadings as a remedy under FLR 1(8) for the failure of a party to obey a court Order in a case is discretionary. The authorities have established a three-part test as a guideline for the exercise of judicial discretion to strike the pleadings of a party. This test was summarized by MacEachern J. in Norris v. Norris, 2019 ONSC 2795 at para. 20 as follows:
Is there a triggering event justifying the striking of pleadings?
Is it appropriate to strike the pleadings in the circumstances of the case?
Are there other remedies in lieu of striking pleadings that might suffice?
60I find that the same litigation delay caused or allowed by Kelly is a triggering event for the Court’s consideration to strike his pleadings. The re-starting of the litigation will disrupt the family dynamic as Dilnawaz and the children have settled into a rhythm of life without Kelly’s involvement in their day-to-day routines. I further find that the emotional toil and the expense Dilnawaz will incur to pursue the disclosure Kelly has been ordered to make after such a long period of inaction is a triggering event that deserves a remedy.
Appropriate remedy
61The decision to strike a document and to set the scope of the responding party’s participation at trial is within the discretion of the judge hearing the motion, exercised properly.
62For a remedy, Dilnawaz asks the Court to apply the test set out in Mullin v. Sherlock, 2018 ONCA 1063. The Court of Appeal in that case recognized a significant shift in family litigation culture that places emphasized the fundamental importance of enforcing Orders. This shift reflected a marked departure from prior authorities that held pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy will do.
63The Court in Mullin v. Sherlock fashioned a framework for deciding what remedy to grant under FLR 1(8) when deciding a remedy to grant on an enforcement motion:
a. the judge must be satisfied that there has been non-compliance with an Order;
b. upon being satisfied as to the non-compliance of a responding party with an Order, the judge must consider the relevance of the non-disclosure, the context and complexity of the dispute, extensiveness of the existing disclosure, seriousness of the efforts made to disclose and explanations for inadequate or the non-disclosure of information and any other relevant factor;
c. the judge must then determine the best or most appropriate remedy to address the non-compliance; and
d. if the judge decides the best remedy to strike, the judge must consider whether an alternate Order is better than the application on FLR 1(8.4) by default.
64Dilnawaz alleges that Kelly has failed to obey the Orders of Bielby J. and Snowie J. to date. She states that Kelly was subsequently given a further chance by Tzimas J. to comply with the two prior disclosure Orders. She has given evidence that he has still not complied with his disclosure obligations under those Orders in a chart attached to her affidavit.
65I find that Kelly has failed to obey all four Orders requiring that he make the required disclosure. This failure to obey one, let alone all of these Orders justifies a remedy under FLR 1(8). I also find that Kelly is in breach of the disclosure obligations he owes pursuant to the Family Law Rules and the (Federal) Child Support Guidelines to bring him within the ambit of FLR 1(8.1). He has failed to substantiate his date of marriage and date of separation assets, his date of marriage and date of separation debts, and has not provided his tax returns. His outstanding disclosure includes, but is not limited to, the following:
a) his income tax returns from 2014 onwards as ordered on April 11, 2018 and April 30, 2018;
b) proof of job search efforts, as ordered on April 11, 2018;
c) proof of his date of marriage and date of separation assets, including for bank accounts, real property, and vehicles, as ordered on April 11, 2018. This means that he has not substantiated the date of marriage or date of separation value of the real property he owns in Kaneff or the date of marriage value of his property in Alberta. In addition, he was specifically ordered to provide valuations for his interests in real estate properties (Kaneff and Alberta) which he has not provided;
d) In addition to bank accounts and real estate interests, Kelly has not provided the date of separation values of his BMW or the artwork and jewellery listed on his financial statement.
e) Similarly, Kelly cites debts on his financial statement and yet for the last 6.5 years, he has failed to provide proof of claimed loans on date of marriage or date of separation, as was ordered on April 11, 2018; and
f) Kelly has failed to provide proof of claimed gifts that he lists on his financial statement, as ordered on April 11, 2018. So while he wants the exclusion for the value of same, he has not substantiated the alleged gift in 6.5 years.
66The Court of Appeal has traditionally held that striking the pleadings of a party is a severe remedy and should be ordered only in exceptional circumstances where no other remedy will suffice: Kovachis v. Kovachis, 2013 ONCA 663 and Chiaramonte v. Chiaramonte, 2013 ONCA 641. This high bar has been lowered in cases where a party has been found in repeated and egregious breach of disclosure orders or has failed to comply with other Orders of the Court: see Manchanda v. Thethi, 2016 ONCA 909, at para. 10.
67This adjustment recognizes the most basic obligation in a family law case is the duty of each party to disclose financial information. The requirement to make this disclosure is immediate and continuous: Roberts v. Roberts, 2015 ONCA 450. The Court in Manchanda v. Thethi affirmed the statement of Myers J. in the decision below that “After continual admonitions by the Courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered an exception.” This is especially the case where a party has been ordered to make proper disclosure to meet his or her obligations under family law.
68The Court took the further opportunity in Mullin v. Sherlock to observe that an effective remedy should be available for inadequate or no disclosure at all. The Court therefore referred to the list of Orders under FLR 1(8) to provide that remedy.
69Dilnawaz has given uncontroverted evidence that the house in which she and the children live is owned by solely by her. Dilnawaz has also given evidence that she brought property into the marriage that gives her a date-of-marriage deduction of greater value than the property she owned on the date of separation. She submits that Kelly does not have a claim to an equalization payment from her because she does not have any net family property value to equalize. The only financial claim she has against Kelly is the $150,000 that he borrowed from her and depleted from his account after separation, contrary to the first Order made by Bielby J.
70In response to Kelly’s claim for spousal support, Dilnawaz argues that he does not have a provable claim for support as he has given no evidence of his employment or income earning abilities on this motion. She states that Kelly owns the condominium he lives in, as well as the cars he drives and other property he uses. Dilnawaz invites the court to draw the inference that Kelly has an income that he chooses not to disclose in the litigation. Based on that evidence and Kelly’s non-disclosure, I have no difficulty in making that finding.
71It is evident from the positions that Kelly has taken throughout this case that he has made the parenting issues the primary issues at the start and now on these motions as vain attempts to divert the attention of the court from the financial interests he seeks to protect. I reach this conclusion because of the strategy he employed in December 2017 upon commencement of the proceeding to bring a parenting motion on an urgent basis and the proposing motion and conference dates for parenting rights that he never followed up, all the while avoiding his disclosure obligations. He proposes to follow the same strategy now that there is a possibility his application could be struck, even though he has made no further disclosure. Kelly’s continuing failure to produce the information ordered by Snowie J. in March 2018 proves that point.
72I do not accept Kelly’s explanation that he suffers from PTSD from abuse of a physical, verbal or emotional nature caused by Dilnawaz as the reason for his non-compliance with court orders, or for not moving the case forward. He has provided no clinical notes or records from a treating health practitioner, or an otherwise qualified expert to give a diagnosis.
73Kelly states in his affidavit that he would be seeking a parenting order even if his application was dismissed. The law provides for the participation of a parent at trial on parenting issues even where his or her pleadings have been struck.
74In several family cases where the pleadings of non-compliant party have been struck, the court has preserved the ability of that party who is a parent to participate at trial in parenting issues. In Van v. Palombi, 2017 ONSC 2492, the Divisional Court allowed the appeal of an Order striking the appellant father’s pleadings in part, ordering that his pleadings would remain struck, but provided that he receive notice of all court proceedings that touch upon the question of (parenting) and that he be permitted to participate in the trial to the extent of those issues in the ways the Court went on to describe in para. 47 of that decision. Stewart J. observed in Van v. Palumbo that this right of a party as the parent of children should have these limited rights at trial because the best interests of the children are at issue.
75The same view was expressed by Mandhane J. in Thomas v. Brereton, 2021 ONSC 5642 at para. 25:
- I refuse, however, to strike his pleadings in relation to the Father’s parenting claims. There are conflicting factual claims in the parties’ pleadings and there is no parenting order or schedule in place. Courts have repeatedly cautioned against striking portions of pleadings dealing with custody and access (now “parenting”) because courts typically require both parties’ participation to make orders that are truly in the best interests of the children: Peerenboom v. Peerenboom, 2018 ONSC 5796 at para. 17, citing Henderson v. McLean, 2015 ONCJ 533 at paras. 41-42.
76The nature of the remedy to grant under FLR 1(8) can be considered under the third factor on a motion for striking pleadings. When all circumstances are considered, striking Kelly’s pleading is appropriate having regard to the strength of his case and his non-compliance with previous Orders. Of the remedies available to the Court under FLR 1(8), this remedy is sufficient for dealing with the case justly while at the same time preserving Kelly’s ability to participate in the parenting issues at trial.
Result
77I find that it would be appropriate to strike Kelly’s application in the circumstances of this case. In my view, there is no reasonable basis to grant Kelly further opportunities to pursue his property and financial claims in the application. He has essentially forfeited those claims due to the effluxion of time. He has never filed a reply to the claims made in Dilnawaz’s answer in any event.
78Kelly will not be prejudiced by the Order striking his application with respect to parenting issues. I am allowing him to participate in the trial to the extent of any parenting issues raised by Dilnawaz in her answer. He may cross-examine her and any witness called by her and by the OCL as to what parenting arrangement would be in the best interests of the children. He may also testify on his own behalf on those issues (after which he may be cross-examined). There is currently no evidence on this record that either child’s best interests will be impaired if their father’s own pleadings containing claims for decision-making responsibility or parenting time are struck.
CONCLUSION
79Kelly’s motion to set aside the dismissal of his application is granted. The motion of Dilnawaz is also granted, on terms. Even though I allowed Kelly’s motion to revive the application, I order that the same application be struck under FLR 1(8) on the cross-motion. I see no other remedy in the circumstances of this case that would be more effective and less intrusive.
80The parties are encouraged to resolve the issue of costs on the two motions. If they cannot, Dilnawaz may file written submissions of not more than three pages, not including any bill of costs or offer to settle, by February 6, 2026. Kelly may file responding submissions subject to the same page limits by February 27, 2026. No reply submissions shall be permitted. All submissions may be filed with proof of service by email to my attention at scj.csj.general.brampton@ontario.ca
Emery J.
Released: January 20, 2026
CITATION: Jogina v. Jogina, 2026 ONSC 288
COURT FILE NO.: FS-17-91119 -0000
DATE: 2026 01 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOGINA, KELLY KERSI
Applicant
- and –
JOGINA, DILNAWAZ
Respondent
REASONS FOR DECISION
Emery J.
Released: January 20, 2026