“If a person fails to obey an order in a case, rule 1(8) of the FLRs provides the court with the discretion to make any order it considers necessary to arrive at a just determination, 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.
I further note r. 1(8.1) that allows for the same relief, with the exception of an order for contempt, as set out above should a party fail to follow the FLRs.
The consequence of striking a party’s pleadings in a case, unless the court orders otherwise, are set out in r. 1(8.4), as follows:
-
-
-
-
- The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).
- The party is not entitled to participate in the case in any way.
- The court may deal with the case in the party’s absence.
- A date may be set for an uncontested trial.
-
-
-
In family matters, the case law directs that the court’s authority to strike pleadings and deny trial participation should be used sparingly and only in exceptional circumstances. An order eliminating a party from participating in a case is a drastic remedy, one of last resort when no other will suffice. See Purcaru v. Purcaru, 2010 ONCA 92, at para. 47, and Chiaramonte v. Chiaramonte, 2013 ONCA 641, 36 R.F.L. (7th) 11, at paras. 31 and 32.
In Kovachis v. Kovachis, 2013 ONCA 663, paras. 27-36, the court set aside the lower court’s order striking pleadings saying the judge failed to consider the substantive disclosure already made, the lack of evidence that the responding party willfully disobeyed the disclosure order, the principle of proportionality fundamental to all civil proceedings in Ontario, and further failed to identify the disclosure still outstanding and the importance of it.
In Roberts v. Roberts, 2015 ONCA 450 (CanLII), at paras. 11, 12 and 13, our Court of Appeal had this to say about a party’s obligation to make financial disclosure:
[11] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
[12] Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.
[13] Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.
In 2016, the Court of Appeal in Manchanda v. Theti, 2016 ONCA 909 (CanLII), leave to appeal refused, [2017] S.C.C.A. No. 29 (S.C.C.), upheld the motion judge’s decision and stated:
[13] … 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, 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.
See also Sparr v. Downing,, 2020 ONCA 793, at para. 4; Peerenboom v. Peerenboom, 2020 ONCA 240; and Martin v. Watts, 2020 ONCA 406.
In Mullin v. Sherlock, 2018 ONCA 1063 (CanLII) the court established the following framework for decisions under rule 1(8):
[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.”
-
-
-
-
-