“Rule 1(8) of the Family Law Rules provides that a court may strike a party’s pleadings as a consequence of failing to obey an order if the court considers it necessary for a just determination of the matter.
Rule 2 of the Family Law Rules sets out that the primary objective of the court is to decide cases justly. This includes the court enforcing its orders and ensuring that parties receive adequate disclosure according to the complexity of the case and the issues relevant to the ultimate disposition of the matter.
The power to strike out a party’s pleadings should be used sparingly and only in exceptional cases: Roberts v. Roberts, 2015 ONCA 450. In family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice: Purcaru v. Purcaru, 2010 ONCA 92.
In family law proceedings, wilful non-compliance of basic financial information must be considered egregious and exceptional, Manchanda v. Thethi, 2016 ONCA 909. A party’s non-compliance must be considered in the context of the strict financial disclosure obligations repeatedly reiterated by the courts: see for example, Roberts v. Roberts, 2015 ONCA 450 at para. 11 and the Family Law Rules: see Rule 13. Those who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck: Manchanda v. Thethi, 2016 ONCA 909.
The Court of Appeal provides a decision-making framework for the application of FLR 1(8) in Mullin v. Sherlock, 2018 ONCA 1063 (CanLII), [2018] O.J. No. 6743:
44 First, when faced with an allegation of failure to obey a disclosure order, before granting a remedy, the judge must be satisfied that there has been non-compliance with the court order.
45 Second, once satisfied, a judge may have recourse to the alternatives described in Rule 1(8). In assessing the most appropriate remedy, a judge should consider the following factors:
*the relevance of the non-disclosure, including its significance in hindering the resolution of issues in dispute;
*the context and complexity of the issues in dispute, understanding that an uncomplicated case should have little tolerance for non-disclosure, whereas a case involving extensive valuation of assets may permit some reasonable delay in responsiveness;
*the extensiveness of existing disclosure;
*the seriousness of efforts made to disclose, and the explanations offered by a defaulting party for the inadequate or non-disclosure; and
*any other relevant factors.
46 Having considered these factors, the judge will then determine the best remedy. The orders identified in Rule 1(8) are not exclusive. Other approaches may be appropriate. For example, one option might be to invite the moving party to seek at trial an adverse inference from the failure to disclose and for the motion judge to memorialize this invitation in reasons for decision. Parties frequently rely on another option, namely a request for an adjournment to allow for more time to effect disclosure. Occasionally this may be appropriate especially in a complex case, but an adjournment should not be automatic. Fully compliant disclosure is the expectation, not the exception.”