“In Van v. Palombi, [2017] O.J. No. 2288, 2017 ONSC 2492 (Ont. S.C. Div.) (CanLII), the Divisional Court held that the case law well establishes that the legal principle governing the exercise of judicial discretion to strike a party’s pleadings is a three-pronged test as follows:
(1) Is there a triggering event justifying the striking of pleadings?
(2) Is it appropriate to strike the pleadings in the circumstances of the case?
(3) Are there other remedies in lieu of striking pleadings that might suffice?
However, the case law is clear that striking a party’s pleadings is a remedy of last resort. In a number of decisions, the Ontario Court of Appeal has made it clear that the power to strike out a party’s pleadings should be used sparingly and only in exceptional cases. See Roberts v. Roberts, 2015 ONCA 450 (CanLII), [2015] O.J. No. 3236, 2015 CarswellOnt 9247 (Ont. C.A.); Manchanda v. Thethi, 2016 ONCA 909 (CanLII).
Even in the event of a court finding a “triggering event”, justifying the striking of pleadings, it is still within the discretion of the court to decide to strike or not on all of the circumstances of the case. Given the exceptional nature of the remedy, the court should examine other remedies that might be appropriate in lieu of striking pleadings, which is the third step of the three-pronged test. See Van v. Palombi, supra, at paragraph 36.
In Chiaramonte v. Chiaramonte, the Ontario Court of Appeal held that in family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice, following its earlier decision in Purcaru v. Purcaru. The Court of Appeal went on to say as follows at paragraph 32 of that decision:
“Striking a party’s pleadings is a drastic remedy that should only be applied in exceptional circumstances. The rules authorizing this remedy must be interpreted in light of the draconian effect of rule 10(5)(b). That rule provides that a respondent whose answer has been struck is not entitled to participate in the case in any way. For example, in Kim v. Kim, 2001 CarswellOnt 502 (ONSC), on the basis of rule 10(5)(b), an uncontested hearing was held on custody, support and property without further notice to the party whose pleadings had been struck. Similarly, in Costabile v Costabile, 2004 CarswellOnt 4860 (ONSC), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.”
Where custody and access interests are involved, the court should avoid the sanction of striking pleadings or use utmost caution because trial courts need the participation of both parties and information that each can provide about best interests. A full evidentiary record, which involves the participation of both parties, is generally required to make a custody decision in the best interests of the children. See King v. Mongrain, 2009 ONCA 486 (CanLII), [2009] O.J. No. 2466, (Ont. C.A.), cited with approval in D.D. v. H.D., [2015] O.J. No. 2959 (Ont. C.A.), and Haunert-Faga v. Faga, 2005 CANLII 39324 (Ont. C.A.), (2005), 20 R.F.L. (6th) 293 (Ont. C.A.).
Further, in Kovachis v. Kovachis, 2013 ONCA 663 (CanLII), the court held that on a motion to strike a party’s pleadings in the family law case because of non-compliance with court orders, the court must consider whether the default is willful and whether striking the pleadings is the only appropriate remedy.
The Court of Appeal has also stated that in exercising the discretion to strike pleadings, a court has the jurisdiction to order the reinstatement of pleadings on conditions. In Costabile v. Costabile, 2005 CarswellOnt. 6909 (Ont. C.A.), the court upheld the lower court’s decision to strike the appellant’s pleadings as the judge contemplated that the appellant would have the right to move to set aside the default and to try to persuade a family court judge that his disclosure and efforts in providing disclosure justified reinstating his pleading. The Court of Appeal opined that this was “a sensible resolution of the matter” and given the broad discretion under the Family Law Rules, the Court also held that a family court judge had jurisdiction to make such an order.
Where financial disclosure orders are violated, courts have struck pleadings on financial issues and have permitted the parenting issues to continue. See: Sleiman v. Sleiman (2002), 2002 CanLII 44930 (ON CA), 28 R.F.L. (5th) 447 (Ont. C.A.).
Finally, before striking a pleading for failure to pay support, the court must consider a payor’s financial circumstances and his or her ability to pay support. See Higgins v. Higgins, 2006 CanLII 33303 (ON CA), [2006] O.J. No. 3913 (Ont. C.A.). Courts have also given a party the opportunity to restore the pleading if arrears of support are paid. See Stein v. Stein, [2003] O.J. No. 2288 (Ont. C.A.); Roberts v. Roberts, 2015 ONCA 450 (CanLII).”