“In Roberts v. Roberts, 2015 ONCA 450, it was held that the power to strike pleadings is to be used “sparingly and only in exceptional circumstances”: para. 15.
Other decisions of the Court of Appeal for Ontario also have emphasized the necessity of exceptional circumstances before pleadings are struck. In Chiaramonte v. Chiaramonte, 2013 ONCA 641, the court stated, at paras. 31-32:
31 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, 75 R.F.L. (6th) 33 (Ont. C.A.), at para. 47. The exceptional nature of this remedy is rooted in the significance of the adversarial system, as this court recognized in Purcaru, at para. 49:
The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court.
32 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 (Ont. S.C.J.), 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 (Ont. S.C.J.), a party whose pleadings had been struck was not entitled to notice of further proceedings nor was he entitled to participate in any way.
In Manchanda v. Thethi, 2016 ONCA 909, relied on by the applicant, the court held, in the context of non-compliance with financial disclosure obligations, that “willful non-compliance must be considered egregious and exceptional,” at para. 13:
13 Our second reason is this: after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, willful non-compliance must be considered egregious and exceptional. This court has stated that the most basic obligation in family law proceedings is the duty to disclose financial information. The requirement is immediate and ongoing: Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6 (Ont. C.A.), at para. 11.) In 2015, Family Law Rule 13 was amended to emphasize a party’s financial disclosure obligations. A party’s non-compliance must be considered in the context of this strict financial disclosure obligation. Rule 1(8) provides the court with the authority to strike claims. 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.
I concur with Moore J.’s conclusion in Peerenboom v. Peerenboom, 2018 ONSC 5796 (Ont. S.C.J.), relied on by the applicant, as to the effect of Manchanda, supra, that earlier statements of the Court of Appeal for Ontario as to finding exceptional circumstances prior to striking pleadings for non-compliance with orders or disclosure obligations must be read with the more recent interpretation in mind: paras. 15, 16 and 22-24.”