CITATION: Gelsinger v. Grabova, 2026 ONSC 4635
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Erick Gelsinger, Applicant
-and-
Merita Grabova, Respondent
BEFORE: Robert Centa J.
COUNSEL: Alessandra Muia, for the applicant
Merita Grabova, self-represented respondent
HEARD: July 30, 2026
ENDORSEMENT
- Overview
[1] The applicant, Erick Gelsinger moves to strike out the answer of the respondent, Merita Grabova. Mr. Gelsinger submits that Ms. Grabova has not complied with an order of Kraft J. dated February 5, 2026. The Order required Ms. Grabova to pay a monetary penalty before a certain date, failing which the court “shall make an order striking her pleadings.” Ms. Grabova acknowledges that she has not paid the amounts required under the Order.
[2] Ms. Grabova did not appeal the Order. Although she started the process of bringing a motion to set the Order aside, she never actually brought that motion before the court. Even if Ms. Grabova’s motion to set aside the Order was before me, I would dismiss it as meritless. Ms. Grabova was properly served with Mr. Gelsinger’s motion materials and there is no other justification to set aside the Order.
[3] The Order gave Ms. Grabova one last chance to comply with prior orders of the court and to engage meaningfully in this family law proceeding. Ms. Grabova knew that Kraft J. concluded that her answer should be struck out unless she complied with the Order. Although represented by counsel both before and after the Order, Ms. Grabova did not comply with its terms. In addition, her engagement with this proceeding since the Order has only been intermittent.
[4] Even if I were to disregard the direction of Kraft J. regarding the appropriate consequence for non-compliance and consider the matter afresh, I am satisfied that Ms. Grabova’s answer should be struck out, and that Mr. Gelsinger should be permitted to proceed to an uncontested trial. Ms. Grabova’s conduct has frustrated the court’s processes and delayed this proceeding unduly. She has not attended conferences and motions of which she had notice. She has not paid amounts required by court orders or has done so only months late. She has initiated motions but not taken them to argument. Mr. Gelsinger is currently living in his car. He is entitled to have this proceeding proceed efficiently through the court.
[5] For the reasons that follow, I am satisfied it is appropriate to strike out Ms. Grabova’s answer and to allow Mr. Gelsinger to proceed to an uncontested trial.
- Background
[6] It is necessary to set out the background to both the parties’ relationship and the litigation history of this proceeding.
A. The parties’ relationship
[7] Justice Kraft ably summarized the parties’ relationship in her endorsement dated February 5, 2026:
5By way of brief background, the parties met in or around June 2014 online.
6They began living together in August 2020 in [Mr. Gelsinger’s] home in Whitby. [Mr. Gelsinger] sold his home in Whitby in October 2020 and used the proceeds of sale, along with his savings to purchase a property in Mississauga, located at 1951 Rathburn Road East. [Mr. Gelsinger] was retired at that point in time and could not qualify for a mortgage.
7The parties agreed for the purposes of obtaining a mortgage, [Ms. Grabova] would go on title solely to ensure that [Mr. Gelsinger] could obtain a mortgage. According to [Mr. Gelsinger], the parties agreed that the Rathburn property was solely his.
[8] The relationship was short-term and ended. [Mr. Gelsinger] is 70 years old. [Ms. Grabova] is 52 years old.
[9] [Mr. Gelsinger] is retired. [Ms. Grabova] works for the TCDSB.
[10] The parties separated on October 1, 2021. At that time, the parties lived separate and apart in the Rathburn property. In March 2023, [Ms. Grabova] left the property on her own volition. The parties had an altercation at the property on June 2, 2023, which resulted in [Mr. Gelsinger being] charged with assault. As a result of those charges, [Mr. Gelsinger] was forced out of the home. He has been residing in his vehicle ever since then.
[11] [Mr. Gelsinger’s] criminal charges have been withdrawn and he entered into a peace bond. He is not able to contact [Ms. Grabova] or be near her. [Ms. Grabova] continues to live in the Rathburn property and has moved her adult son into the home without [Mr. Gelsinger’s] consent. According to [Mr. Gelsinger], [Ms. Grabova] has failed to pay her half of the mortgage on many occasions which has forced [Mr. Gelsinger] to use his savings to do so to prevent the mortgage from going into default.
[12] [Mr. Gelsinger’s] only income is Old Age Security, CPP and his military pension as he served in the Canadian Military for 28 years. His monthly income from these three sources is $4,200 a month approximately. These funds are used to pay the carrying costs of the Rathburn property, everyday expenses and food.
8The facts of this case cry out for speedy resolution. Both parties require finality and the ability to move on with their lives. It is imperative that the court provide meaningful and prompt access to justice.
B. Litigation history
9On July 7, 2025, the parties were to attend a settlement conference before A.P. Ramsay J. Ms. Grabova did not attend. Justice Ramsay adjourned the settlement conference to November 28, 2025, and ordered Ms. Grabova to pay $1,000 in costs thrown away to Mr. Gelsinger within 90 days. Ms. Grabova did not pay this costs order within the specified time limit.
10On November 28, 2025, both parties attended the resumed settlement conference before Ramsay J. However, Ms. Grabova did not file any materials for use at the settlement conference, which significantly undermined its utility. Justice Ramsay found that Ms. Grabova did “not offer any valid excuse for failing to” file materials as required by the Family Law Rules, O. Reg. 114/99. Justice Ramsay provided Ms. Grabova with detailed guidance about her disclosure obligations. Justice Ramsay granted leave to Mr. Gelsinger to bring a motion to strike out Ms. Grabova’s answer, to be heard on February 5, 2026. Justice Ramsay ordered Ms. Grabova to pay $500 in costs of the conference to Mr. Gelsinger within 90 days. Ms. Grabova did not pay this costs order within 90 days.
11On February 5, 2026, Mr. Gelsinger’s motion to strike Ms. Grabova’s pleading was to be heard before Kraft J. Ms. Grabova had still not paid either of the orders for costs. Although properly served, Ms. Grabova neither filed responding materials nor attended at court. I observe that Ms. Grabova was present on November 28, 2025, when Ramsay J. granted leave to Mr. Gelsinger and scheduled his motion to strike out her pleading. Ms. Grabova knew the jeopardy she faced on that motion two months before the motion date, yet she did not pay the outstanding costs orders, file responding material, or attend the motion.
12At the return of the motion, Justice Kraft found that Ms. Grabova was in breach of a court order:
24I find that [Ms. Grabova] is in breach of a court order. [Ms. Grabova] failed to pay the costs award of $1,000 as ordered by Ramsay, J., dated July 7, 2025, within 90 days. [Ms. Grabova] has also failed to follow the Family Law Rules by her failure to attend the scheduled conference on July 7, 2025, and her failure to file and serve a brief for the case conference on July 7, 2025, and the case conference on November 28, 2025.
25[Ms. Grabova’s] conduct in this proceeding has resulted in two case conferences being wasted because of her failure to comply with the Family Law Rules. Further, [Ms. Grabova’s] breach has resulted in [Mr. Gelsinger] incurring the costs of attending two conferences and incurring the legal fees to bring this motion to strike [Ms. Grabova’s] Answer.
[13] Justice Kraft then considered whether Ms. Grabova’s misconduct justified striking her pleadings. Justice Kraft concluded that Ms. Grabova’s “non-compliance with one costs order and the Family Law Rules, at this point in time, [was not] ‘egregious and exceptional’…[or] wilful in nature.” [emphasis added] For those reasons, Kraft J. declined to strike out Ms. Grabova’s answer. Instead, Kraft J. imposed a monetary fine in the sum of $500 per day for Ms. Grabova’s non-compliance with cost orders:
44This Court makes the following order:
a. Pursuant to rule 1(8)(a.1), [Ms. Grabova] shall pay [Mr. Gelsinger] a monetary fine in the sum of $500 per day for each day of non-compliance as of October 3, 2025.
b. Pursuant to rule 1(8)(a.1), if [Ms. Grabova] does not comply with the costs order of Ramsay, J ., dated November 28, 2025, by paying [Mr. Gelsinger] $500.00 by February 26, 2026, [Ms. Grabova] shall pay [Mr. Gelsinger] a monetary fine in the sum of $250 per day for each day of non-compliance as of February 26, 2026.
c. If [Ms. Grabova] does not pay the costs and the daily monetary fines to the applicant by April 10, 2026, then the judge hearing the combined conference on April 24, 2026, shall make an order striking her pleadings and direct how [Mr. Gelsinger’s] uncontested trial shall proceed.
[14] At some point after the Order, Ms. Grabova retained her third lawyer. She did not, however, appeal the Order.
[15] On February 13, 2026, Ms. Grabova’s counsel wired $1,500 to the bank account of counsel for Mr. Gelsinger. Although it is not entirely clear, it appears that this payment was designed to address the costs orders of Ramsay J. dated July 7, 2025, and November 28, 2025.[1] If so, pursuant to the Order:
a. Ms. Grabova was in breach of the July 7, 2025, costs order of Ramsay J. from October 3, 2025, until February 13, 2026, which is 134 days. The total fine imposed by Kraft J. crystallized at $67,000.
b. Ms. Grabova paid the costs ordered by Ramsay J. on November 28, 2025, before the deadline and no fines accrued.
[16] Ms. Grabova did not comply with the portion of the Order requiring her to pay all the monetary penalties before April 10, 2026. On that day, however, Ms. Grabova brought an urgent motion to set aside or vary the Order. At an attendance before Nakonechny J. on April 20, 2026, Ms. Grabova acknowledged that she had not made the payments ordered and was worried that her pleadings would be struck at the conference scheduled for April 24, 2026. Justice Nakonechny directed Ms. Grabova to raise the issues at the upcoming conference.
[17] On April 24, 2026, the combined conference proceeded before Horkins J. It is common ground that Ms. Grabova did not pay the $67,000 she owed by April 10, 2026, as the Order required. Justice Horkins concluded that she did not have jurisdiction at a conference to strike out Ms. Grabova’s pleading despite the mandatory language in the Order, so she set a timetable for next steps in the proceeding:
6On April 10th, [Ms. Grabova] served [Mr. Gelsinger] with a notice of motion and affidavit both dated April 10th, 2026. At the request of [Ms. Grabova], the parties attended before Justice Nakonechny for Early Judicial Intervention concerning [Ms. Grabova’s] April 10th motion. The court ordered that the judge hearing the conference on April 24th would determine the next steps.
7The language in Justice Kraft's order is mandatory; the pleading shall be struck if [Ms. Grabova] has not paid the costs and daily penalty. [Ms. Grabova] is clearly aware that non-payment will result in her pleading being struck. The importance of making full payment was emphasized to [Ms. Grabova] today. The court also explained that her motion will proceed, as scheduled below, with or without counsel.
8This court was directed by Justice Nakonechny to determine the next steps in view of [Ms. Grabova’s] motion. Given what has transpired, I make the following orders regarding the next steps.
[Ms. Grabova’s] notice of motion dated April 10, 2026, shall be heard in court on May 19, 2026, at 10 am.
[Mr. Gelsinger] shall serve and file his responding affidavit by May 5, 2026.
[Ms. Grabova] may serve a reply affidavit no later than May 12, 2026.
The parties shall serve and file factums no later than May 14, 2026.
The judge hearing [Ms. Grabova’s] motion shall also decide if paragraph 3 of Justice Kraft's order is triggered.
[18] Mr. Gelsinger brought a cross-motion to strike out Ms. Grabova’s pleading for failure to comply with the Order.
[19] Ms. Grabova’s motion and Mr. Gelsinger’s cross motion did not proceed on May 19, 2026. Apparently, they were removed from the list when neither party filed a motion confirmation form in accordance with the applicable timelines. Since that time, Ms. Grabova has taken no steps to bring her motion back before the court.
[20] Mr. Gelsinger’s motion came before me on July 23, 2026. Ms. Grabova was not present at court. This was the third time she did not attend a scheduled conference or motion date. This conduct is troubling, particularly given the stakes of the motion for her.
[21] Counsel for Mr. Gelsinger had trouble accessing Case Center, so I adjourned the motion to come back before me on July 30, 2026, at 8:30 a.m. I made the motion peremptory on Ms. Grabova.
[22] As of July 30, 2026, Ms. Grabova has neither complied with nor appealed the Order.
3. There is no basis to set aside the Order
[23] As indicated above, Ms. Grabova did not appeal the Order. While she was represented by counsel, Ms. Grabova did deliver a notice of motion, affidavit, and factum in support of her request to set aside the Order. Her motion did not proceed on May 19, 2026, and was struck from the list because it was not confirmed in accordance with the rules. Ms. Grabova then took no steps in the intervening two months to get her motion rescheduled.
[24] Most of the evidence and argument in Ms. Grabova’s motion material is directed at the merits of the Order or why the motion judge should have exercised her discretion differently. While those submissions might be relevant to an appeal of the Order, they are not relevant to a motion to set it aside. A motion to set aside is not the same thing as an appeal and I have no jurisdiction to sit in appeal of the Order.
[25] Even assuming Ms. Grabova’s motion to set aside was properly before me, and it was not, I would not set aside the Order. I have reviewed the materials Ms. Grabova delivered in support of her motion. In her notice of motion and factum (which were prepared by counsel), Ms. Grabova did not identify the rule on which she relies for the relief sought.
[26] Ms. Grabova was notified of Mr. Gelsinger’s motion and, indeed, Ms. Grabova presented no evidence to the contrary. Therefore, there is no basis to set aside the Order pursuant to rule 6(20) of the Family Law Rules.
[27] I am also satisfied that Mr. Gelsinger did not obtain the Order by fraud, mistake, or through lack of notice. Subrule 25(19) of the Family Law Rules provides the court with very limited jurisdiction to change an order. It provides as follows:
(19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[28] Ms. Grabova does not meet any of the grounds listed in r. 25(19)(a) to (d). Ms. Grabova presented no evidence that Mr. Gelsinger obtained the order by fraud. Ms. Grabova does not suggest that the order needs to be changed to deal with a matter that was before the court but that it did not decide. Ms. Grabova, who was present when Ramsay J. granted leave to Mr. Gelsinger to bring his motion, does not (and could not) suggest that the motion was made without notice.
[29] With respect to r. 25(19)(5)(e), Ms. Grabova does not submit that the notice was inadequate. I also find that Ms. Grabova has not provided a satisfactory reason as to why she was not able to be present in court on February 5, 2026. In her affidavit, Ms. Grabova states that:
Due to the abuse, trauma, fear, and financial hardship, I was not mentally or financially capable of responding properly to the motion.
I was overwhelmed and unable to prepare legal materials or defend myself at that time.
[30] It appears that Ms. Grabova did not raise any such concerns before Ramsay J. on November 28, 2025. Indeed, Ramsay J. indicated in her endorsement that Ms. Grabova did “not offer any valid excuse” for failing to file any materials. As recorded in her endorsement, Justice Ramsay provided a detailed explanation of the Family Law Rules and her disclosure obligations. I have no doubt that if Ms. Grabova requested any accommodations from Ramsay J. to assist her to prepare for and participate in the motion, those concerns would have been documented in the endorsement.
[31] Ms. Grabova has not provided a satisfactory reason for not attending court on February 5, 2026. Her affidavit does not explain, for example, why she was able to attend court on November 28, 2025, but could not attend on February 5, 2026. The court can provide accommodations to litigants who have experienced violence and may not wish to be in the same room as their former partner. The court can provide extensions of time to file materials if a person needs additional time to complete their materials because they have experienced violence. The court can grant adjournments (sometimes on terms) to litigants who are unable to attend court on a particular day because of their health including, of course, mental health concerns. What litigants cannot do without fear of consequences is participate in the proceeding only when it suits them.
[32] If Ms. Grabova’s motion to set aside the Order was before me, I would dismiss that motion.
4. Ms. Grabova’s answer should be struck out
[33] Ms. Grabova admits that she has not complied with the terms of the Order. She did not pay the monetary fine Kraft J. imposed for Ms. Grabova’s failure to pay the costs order of Ramsay J. by its deadline of October 3, 2025. Justice Kraft directed that Ms. Grabova’s answer should be struck out if she did not comply with the terms of the Order:
If [Ms. Grabova] does not pay the costs and the daily monetary fines to [Mr. Gelsinger] by April 10, 2026, then the judge hearing the combined conference on April 24, 2026, shall make an order striking her pleadings and direct how [Mr. Gelsinger’s] uncontested trial shall proceed.
[34] Mr. Gelsinger submits that I should simply implement the Order and strike the pleading. There is some force to this submission.
[35] Ms. Grabova was certainly aware of the Order’s terms. Indeed, Ms. Grabova brought a motion to have the Order set aside on April 10, 2026. Ms. Grabova further advised Nakonechny J. on April 20, 2026, that “[s]he has not made the payments ordered and is concerned her pleadings will be struck at the conference on April 24.” In addition, Horkins J. emphasized the consequences of the order to Ms. Grabova on April 24, 2026, when she timetabled Ms. Grabova’s motion to set aside the order:
The language in Justice Kraft's order is mandatory; the pleading shall be struck if [Ms. Grabova] has not paid the costs and daily penalty. [Ms. Grabova] is clearly aware that non-payment will result in her pleading being struck. The importance of making full payment was emphasized to [Ms. Grabova] today. The court also explained that her motion will proceed, as scheduled below, with or without counsel.
[36] I agree with Mr. Gelsinger on the importance of enforcing court orders. In general, where the court identifies a consequence for non-compliance and a litigant does not comply with the order, the court should impose that consequence.
[37] In this case, Mr. Gelsinger asked Kraft J. to strike Ms. Grabova’s pleading on February 5, 2026, for her failure to comply with the costs order of Ramsay J. Justice Kraft concluded that Ms. Grabova’s non-compliance with the costs order was not egregious and exceptional “at this point in time.” Justice Kraft considered her jurisdiction under r. 1(8)(a.1), which grants the court “the power to make ‘an order to pay an amount to a party or into court as a penalty or a fine’.” Justice Kraft noted that this power was an additional means to hold unresponsive, indifferent, or defiant parties accountable.
[38] Justice Kraft exercised her discretion and gave Ms. Grabova one last chance by imposing monetary penalties instead of striking the pleading. In addition, Justice Kraft warned Ms. Grabova that, unless she paid those penalties by a certain date, her claim would be struck out.
[39] When one judge of the court gives a litigant a last chance and, in their view, thinks a specific and defined consequence should follow for non-compliance, the next judge of that court should be very reluctant to depart from that specified outcome. If a subsequent judge departs too easily from that intended consequence, it invites non-compliant parties to spin the wheel and hope they will obtain a more favourable outcome before a different judge. Such an approach would undermine the finality of court orders, disincentivize compliance, and waste scarce judicial resources.
[40] I need not decide if I am bound by the Order because, in any event, if I was considering this matter without the benefit of the order of Kraft J., I would reach the same conclusion: Ms. Grabova’s pleading should be struck.
[41] Justice Kraft correctly stated the applicable legal principles concerning the exercise of discretion under rule 1(8.4) of the Family Law Rules:
31The default outcomes of Rule 1(8.4) are drastic and meant to be a remedy of last resort. A pleading should only be struck and trial participation denied in exceptional circumstances, where no other remedy would suffice: Marcoccia v. Marcoccia, 2008 ONCA 866 (C.A.), at para. 3; Purcaru v. Purcaru, 2010 ONCA 92 (C.A.), at para. 47; Chiaramonte v. Chiaramonte, 2014 ONCA 641 (C.A.), at paras. 31-33; Kovachis v. Kovachis, 2013 ONCA 663 (C.A.), at para. 24; Vetro v. Vetro, 2013 ONCA 303 (c.a.), at para. 3; Roberts v. Roberts, 2015 ONCA 450 (C.A.), at para. 15; and Mullin v. Sherlock, 2018 ONCA 1063 (C.A.), at para. 13.
34The Ontario Court of Appeal has emphasized that although striking pleadings is limited to exceptional circumstances, a party's wilful non-compliance with disclosure obligations and orders "must be considered egregious and exceptional," having regard for "the continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation" (Manchanda v. Thethi, 2016 ONCA 909 (C.A.), at para. 10, leave to appeal refused, [2017] S.C.C.A. No. 29 (S.C.C.)). The Supreme Court of Canada refused leave to appeal this decision and has therefore endorsed this proposition. In Peerenboom v. Peerenboom, 2018 ONSC 5796 (S.C.J.), at para. 24, Moore J. emphasized 24 that the Court of Appeal's earlier comments about the exceptional status of striking pleadings.
[42] Striking Ms. Grabova’s claim is entirely consistent with the primary objective of the Family Law Rules to deal with cases justly: Manjunath v. Kuppa, 2024 ONCA 668, at para. 10. Dealing with a matter justly includes ensuring a procedure that is fair to all parties, saving expense and time, addressing the case in manner appropriate to its importance, and balancing the allocation of court resources to the case with the demands of other cases: rules 2(2) and 2(3). I am satisfied that this is an exceptional case where no lesser remedy than striking her pleading will redress Ms. Grabova’s failure to comply: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6.
[43] First, Ms. Grabova breached the Order, when she failed to pay the fine that she owed by April 10, 2026. She has not remedied her breach in the three months that have passed. She has not suggested that the amount owing was calculated incorrectly, requested the opportunity to pay the amount over time, or requested to pay a lesser amount. She has made no partial payment toward the fine she owes. Ms. Grabova has not indicated that she will comply with the Order if I give her more time to do so.
[44] Second, I am very concerned that Ms. Grabova remains unwilling to comply with court orders, follow the Family Law Rules, or participate meaningfully in this proceeding. To briefly recap some of Ms. Grabova’s conduct in the litigation:
a. July 7, 2025 – Ms. Grabova did not attend the settlement conference, which entirely wastes the attendance. She is ordered to pay $1,000 in costs thrown away within 90 days but does not pay the costs until February 13, 2026;
b. November 28, 2025 – Ms. Grabova attended the second settlement conference but did not file any material in advance and offers no valid excuse for failing to do so. She is ordered to pay $500 in costs within 90 days, which she pays on February 13, 2026;
c. February 5, 2026 – Ms. Grabova did not file any responding material or attend court for Mr. Gelsinger’s motion to strike her pleading. In the days that follow, she neither complied with nor appealed the Order;
d. April 24, 2026 – Ms. Grabova obtained a motion date and timetable for her motion to set aside the Order. Ultimately, she did not confirm the motion date and took no steps to reschedule her motion;
e. July 23, 2026 – Ms. Grabova does not attend the first scheduled hearing date for Mr. Gelsinger’s motion to strike out her pleading.
[45] Ms. Grabova’s misconduct has caused unacceptable delay. Over one year has passed since the date of the first settlement conference. Ms. Grabova’s conduct has completely stalled this proceeding. The parties are no closer to resolution now than they were one year ago. It is not lost on me that delay in this proceeding may inure to the benefit of Ms. Grabova, who occupies the parties’ home, at the expense of Mr. Gelsinger, who is living in his car.
[46] Third, I am not persuaded that Ms. Grabova’s finances compel a lesser remedy considering the other circumstances in this case. If Ms. Grabova wished to rely on her finances to explain why a monetary fine was not appropriate, that evidence should have been put before Kraft J. or in a motion to admit fresh evidence on appeal. The limited evidence filed by Ms. Grabova on her motion to set aside the order does not persuade me that a lesser remedy is appropriate in the circumstances.
[47] I conclude that Ms. Grabova has breached the Order and that no lesser sanction than striking out her pleading is appropriate in the circumstances of this case.
[48] I make the following order:
a. Ms. Grabova’s answer is struck out;
b. The consequences set out in rule 1(8.4) 1 to 4 of the Family Law Rules, O. Reg. 114/99, shall apply to Ms. Grabova; and
c. Mr. Gelsinger may obtain a date from the trial office for an uncontested trial.
[49] If the parties cannot resolve costs of this action, Mr. Gelsinger may email his costs submission of no more than three double-spaced pages to Theresa.finelli@ontario.ca on or before August 18, 2026. Ms. Grabova may deliver her responding submission of no more than three double-spaced pages on or before August 25, 2026. No reply submissions are to be delivered without leave.
Robert Centa J.
Date: August 11, 2026
1I note that this payment would not appear to include interest at 4% per annum on the order dated July 7, 2025, which started to run when the order was not fulfilled 90 days after it was made.