Anderson v. McWatt

This is a case which underlines the danger of ignoring court orders.  The court was forced to deal with a highly acrimonious divorce, in which a self-represented litigant consistently ignored court orders and generally submitted contradictory and less than helpful evidence.

Background

Helen Anderson and Roger McWatt married in 1989 had two children and separated in 1997. They then embarked on lengthy and very hostile litigation.  McWatt was ordered to pay interim child and spousal support in 2001, and by 2004 he was in arrears of his payments by $49,735. The Family Responsibility Office incarcerated him in 2004 for seven days due to his failure to pay.

In November 2009, the court issued an order restraining the FRO from collection efforts for 60 days, and prevented them from using the enforcement mechanisms of incarceration of suspension of his driver’s licence. The husband was also required to pay the arrears, but was given time to re-finance his house to do so. The applicant sought an order to strike the respondent’s pleadings in February of 2010, but the court declined to issue that order and instead ordered the husband to pay outstanding arrears of $49,735 and provide disclosure.  The respondent failed to comply with either order and the applicant bought another claim to strike the respondent’s pleadings.

Motion to Strike Pleadings

The court was confronted with a number of difficult and confusing arguments on behalf of the respondent husband. The court first investigated if the husband had complied with its order to pay the arrears in support. The court investigated several attempts by the respondent to obtain a loan. In the husband’s application for a loan, which he submitted in an affidavit he indicated that he had a net worth of $2,380,800; consisting of $10,500 bank account, $3,000 Registered Retirement Savings Plan and $40,000 other assets.  The court also noted that the house which the respondent was attempting to receive refinancing for had never been put up for sale.  To determine whether it should strike the husband’s pleading, the court looked to Rule 14(23) of the Family Law Rules which states:

(23) A party who does not obey an order that was made on a motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court, may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs.

The court cited the case of Gordon v. Starr, and stated that subrule 14(23) is mandatory “unless the court orders that this subrule does not apply.” The onus is on the individual whose claims will be struck by the court to show on a balance of probabilities it is not applicable.  The court then stated that the husband had been flouting numerous court orders, ignoring them and attempting to obtain relief while avoiding paying the arrears.  As a result of this refusal to comply with court orders, the court struck down the pleadings of the husband.

The court also removed the order which restrained the FRO from using its powers to suspend licenses and passports against the husband.  The judge stated that restraining the FRO from using these powers infringed upon its statutory duty. It created a situation in which the husband was judgment proof.  The court took a strong stance against what it described the “merry go round” of litigants ignoring court orders.

 

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. When a party fails to comply with court orders, courts should strike pleadings. A message should be sent to the non complying party early on with a warning, and this should be followed through quickly. The husband in this case had lots of time and opportunity to comply and rectify his arrears and comply with the court orders but failed to do so and the striking order was justified. I think the striking of the pleadings should have happened earlier. The message is -comply with orders or pay the consequences.

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