“Rule 1(8) 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.
Rule 1(8) of the Family Law Rules has its civil counterparts in Rules 60.12 and 53.07(2) and of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. It contains a broad selection of sanctions available to courts to change litigation conduct and to promote the objectives of Rule 2: timely, procedurally fair, cost effective and proportional management of family law cases.
Amongst the subrule’s array of sanctions, Rule 1(8)(b) is the nuclear option. It is more than a stay pending compliance – it is the end of a claim even were there to be future compliance. It brings the claim itself to an end, not just the litigation. Because it is such a significant Order, it must always be an Order of last resort.
Judicial treatment of Rule 1(8) generally begins with Justice Quinn’s admonition in Gordon v. Starr, [2007] W.D.F.L. 4107, [2007] (Ont. S.C.) that “court Orders are not suggestions” and that “[o]ne 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.”
In Roberts v. Roberts, 2015 ONCA 450 (CanLII) Justice Benotto of the Ontario Court of Appeal spoke specifically about obeying Orders for disclosure, emphasizing that the most basic obligation in family law is the duty to disclose financial information and the failure to abide by this fundamental, immediate and ongoing obligation “impedes the progress of the action, causes delay and generally acts to the disadvantage to the opposite party. It also impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.”
In Manchanda v. Thethi, 2016 ONSC 3776 (CanLII), appeal dismissed 2016 ONCA 909 (CanLII), Justice Myers at para. 22 was crystal clear about the consequence of failing to evidence one’s case on a timely basis.
A party should not have to endure order after order after order being ignored and breached by the other side. A refusal to disclose one’s financial affairs is not just a mis-step in the pre-trial tactical game that deserves a two-minute delay of game penalty. Failure to disclose is a breach of the primary objective. Especially if it involves breach of a court order, a party who fails to disclose evinces a determination that he or she does not want to play by the rules. It is time to oblige such parties by assessing a game misconduct to eject them from the proceeding.
Courts serve the public by assisting litigants in the resolution or the adjudication of their legal disputes. They cannot and must not be used to unnecessarily further those disputes or for an improper purpose: such as making a temporary order effectively final by preventing the matter from ever reaching trial. As stated by Justice Diamond in Granofsky v. Lambersky, 2019 ONSC 3251, a just determination of any family proceeding is rooted in the protection of the administration of justice as a whole, and when a party chooses to consistently disobey a court order, the administration of justice itself is called into question.”