“The Family Law Rules include a number of provisions aimed at addressing situations such as the one which has developed in this case, where one of the parties chooses not to comply with court orders and/or not to participate responsibly in the court process. The relevant Rules for the purposes of this hearing are as follows:
1. Rule 1(8) gives the court a broad discretion to craft a remedy in response to a party’s failure to follow the Rules, or their failure to obey an order in the case or a related case. It stipulates that in those circumstances, the court may make “any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate,” including an order for costs, and an order dismissing a claim made by the party who has “wilfully failed to follow the rules or obey the order.”
2. Rule 13(17) provides that if a party does not comply with an order requiring them to provide financial information, the court may make any appropriate order, including an order dismissing the party’s case and striking out any document filed by the party and a contempt order.
3. Rule 14(23) provides that a party who does not obey an order made on motion is not entitled to any further order from the court unless the court orders that this Rule does not apply. The Rule further stipulates that in addition to any other remedy permitted under the Rules, the court may make any order that is appropriate including an order dismissing the party’s case, striking out the party’s answer or any other document filed by the party, or an order for costs.
In addition to these Rules, the court has an inherent jurisdiction to make any order which it considers appropriate in order to address a party’s failure to respect the court process, including failure to comply with court orders. This authority includes the jurisdiction to strike a claim of a party who is in breach of an order.1
Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge’s mind in considering remedies for a party’s failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care.
The Rules referred to above are the main tools which a judge presiding over Family Law matters has in their toolbox to prevent a party from embarking upon the game of litigation abuse. The scope of these Rules must be interpreted broadly in order to protect the integrity of the court process and the beneficial intention of Family Law proceedings, and to ensure that parties who do respect the court system are able to achieve justice in a timely, affordable and emotionally respectful manner. Judicial response to a party’s failure to respect the court process and court orders should be strong and decisive. The judge should be as creative as necessary in crafting remedies so as to ensure that the noncompliance identified and the resulting damage to the other party are addressed as fully, justly and quickly as possible.”