“Court orders are not optional. Non-compliance must have consequences: Gordon v. Starr, 2007 CanLII 35527 (ONSC), at para 23; Taylor v. Taylor, 2005 CanLII 63820 (ONSC), at para 3; Levely v. Levely, 2013 ONSC 1026, at paras. 12 and 13.
Faced with a party’s failure to respect court processes, judicial responses should be “strong and decisive”: Levely, supra.
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.
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).
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, 2007 CanLII 10905 (ON SC), [2007] OJ No 1282 (QL); CanLII 10905 (ON SC) at para 27.
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.
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 at paras 69-70; Ablett v Horzempa, 2011 ONCA 633 at para 7.
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.
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 at para. 64
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 at para. 30; Giavon v Giavon, 2020 ONSC 21 at para 69.”