“Is there any distinction between striking out pleadings and prohibiting future filings? The applicable Family Law Rules regarding this question in this particular case are Rules 1(8)(c); 1(8.4) and 10(5), which read as follows:
1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit or any other document filed by a party,
1(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
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- The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
- The party is not entitled to participate in the case in any way.
- The court may deal with the case in the party’s absence.
- A date may be set for an uncontested trial of the case.
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10(5) The consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply, with necessary changes, if a respondent does not serve and file an answer.
Rule 1(8) (c) includes “notice of motion” and “any other document filed by a party” in the list of documents that may be struck out. However, Rule 1(8.4) does not include either of those items in its corresponding list of documents. Therefore, the striking of a notice of motion does not have clearly-defined consequences. Obviously, the relief sought in a notice of motion that is struck out will not be granted, but is the moving party precluded from seeking the same relief at a future date? If the latter, how is the analysis influenced by the jurisprudence under Rule 14(21), wherein the court may prohibit future motions without permission only where a party is found to have abused the court’s process? Is non-compliance under Rule 1(8.4) akin to abuse of process under Rule 14(21)? Although these questions are not directly before me at this time, I highlight them as they may well present themselves should Father seek to revive his motion vis-à-vis the residency arrangements for C.G.S.
In contrast, the connection between Rule 10(5) and Rule 1(8.4) clearly confirms that the striking out of an Answer is equivalent to a prohibition on its future filing. Thus, the analysis applies equally. Father argues that, practically speaking, extensions of thirty (30) days to serve and file Answers are granted routinely even in the face of the language of Rule 10(5). He submits that it would be procedurally unfair to him not to provide a reasonable extension to serve and file his responding documents. Further, the absence of his participation would negatively impact upon the Court’s ability to address critical parenting issues for the parties’ children. These submissions go not to the scope of potential relief under Rule 10(5) but rather to the question of appropriate remedy; they will be addressed at that stage of the analysis.”