“Rule 1(8) of the Family Law Rules reads as follows:
FAILURE TO OBEY ORDER
(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,
(a) an order for costs;
(b) an order dismissing a claim;
(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;
(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;
(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
(f) an order postponing the trial or any other step in the case; and
(g) on motion, a contempt order. O. Reg. 322/13, s. 1
In 2014, Rule 1(8) was amended, removing the earlier requirement that the failure to obey an order be “wilful” for the Court to be able to dismiss a party’s claim. The jurisprudence under former subrules 1(8) and 14(23) and is still applicable and sets out the relevant principles. See Bullock v. Bullock, 2017 ONSC 1719 at 38, 39.
Where there has been a failure to obey a Court Order, the Court may make any order that it considers necessary for a just determination of the matter, including dismissing the claim. The words “just determination” are sufficiently broad to include protecting the administration of justice, which is at stake when a party wilfully disobeys an Order. Hughes v. Hughes, 2007 CanLII 10905 (ON SC), 2007 CarswellOnt 1977.
In Ferguson v. Charlton, 2008 ONCJ 1 (CanLII), [2008] O.J. No. 486 (O.C.J.), Justice Spence set out a three stage process for approaching the application of Rule 1(8) as follows:
1. Is there a triggering event that would allow a consideration of Rule 1(8)?
2. Is it appropriate to exercise discretion in favour of the non-complying party? This discretion should be exercised only in “exceptional circumstances.”
3. If discretion is not exercised in favour of the non-complying party, what is the appropriate remedy pursuant to the provisions of Rule 1(8)?
In Ferguson, supra, the father in 2007 sought rescission of arrears accumulated under an Order from 2003. Among other things, the father alleged that the mother had alienated the children from him. Justice Spence cited Justice Quinn in Gordon v. Starr, 2007 CanLII 35527 (ON SC), 2007 CarswellOnt 5438 in which he commented on the “offensiveness of allowing a party to obtain relief while in breach of a Court Order,” stating:
Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders. Ferguson, supra at 59.
The three stage process set out by Justice Spence in Ferguson, supra has been adopted and applied by the Ontario Superior Court in decisions including Bullock, supra, Dumont v. Lucescu, 2015 ONSC 494, Mark v. Cirillo-Mark, 2014 CarswellOnt 8429, and Chiaramonte v. Chiaramonte, 2015 ONSC 179.
The fact that a party does not act when he or she first learns that the other party is in non-compliance with an Order is not relevant. As Justice Quinn states in Hughes, supra, “A court should never be left at the mercy of litigants when it comes to defending and preserving the administration of Justice.” See Hughes, supra, at 26.”