“As set out by Chappel, J., in “Striking Pleadings in Family Law – Part 1: Introduction and Overriding Principles”, 2019 CanLIIDocs 3941, the case-law has established the following analytical framework and considerations that apply when dealing with a motion to strike the party’s pleadings on the basis of non-compliance with court orders or Rules:
a. First, the judge must be satisfied there has been non-compliance (Mullin v. Sherlock, 2018 ONCA 1065 (CanLII), at para. 44. At this step, it is critical that the motion judge outline in detail their findings respecting the party’s non-compliance with any relevant orders or Rules (Kovachis v. Kovachis, 2013 ONCA 644).
b. Second, if the court is satisfied that there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case before the court. In undertaking this task, the court should consider and weigh the following factors:
i. The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633 (C.A.), at para. 7;
ii. Whether the disobedience of the orders and Rules was wilful in nature (Marcoccia, supra, at para. 13; Kovachis, supra, at para. 3; Manchanda v. Thethi, 2016 ONCA 909, at para. 9);
iii. Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Chiaramonte v. Chiaramonte, 2013 ONCA 641, at para. 37; Brisson v. Gagnier, 2014 ONCA 909 (C.A.) at para. 3; Marcoccia, supra, at paras. 10-12; Horzempa, supra, at para. 6; Mullin, supra, at para. 45;
iv. Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 CarswellOnt 5893 (C.A.); and
v. The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, supra, at para. 3; Manchanda, supra, at para. 9; Mullin, supra, at para. 49). It should not go beyond what is necessary to express the court’s disapproval of the conduct in issue (Marcoccia, supra, at para. 14; Pucaru, supra, at para. 49).”