This recent decision from the Superior Court of Justice clarifies the confusion for family law counsel in Ontario following the release of the conflicting decisions of the Ontario Court of Appeal in Berta v. Berta 2015 ONCA 918, and Forrester v. Dennis 2016 ONCA 214 regarding costs, and confirms the decision of Jackson v. Mayerle 2016 ONSC 1556 as the go to case for analysis of Rule 24 of the Family Law Rules.
Gordon v. Starr is a decision of the Ontario Superior Court of Justice which illustrates the importance of following Court Orders that deal with costs. This decision came out of a Motion in which the moving party sought to have the motion dismissed and/or the responding party’s Application stayed based on their failure to satisfy a previous Order for costs. Justice Quinn reviewed Rule 14(23) of the Family Law Rules which says the following:
14. (23) A party who does not obey an order that was made on 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. O. Reg. 114/99, r. 14 (23); O. Reg. 89/04, s. 6 (7).
Justice Quinn stated that this subrule must be applied unless the Court finds that it is not applicable in a given case. The Judge went on to note that it would take an extraordinary set of circumstances in order for a Court to find that Rule 14(23) does not apply. This is because the Court does not see any reason why a litigant should be spared from obeying a Court Order. This is especially so in the case at bar where the responding party was fully able to obey the Court Order. The responding party was clearly in breach of her costs Order and, as such, Justice Quinn applied Rule 14(23) quite strictly.
Justice Quinn noted that it would be counter-intuitive to grant a party relief from a Court whose previous Order that party chose not to follow. Such a result would diminish the force of Court Orders. The Court made particular mention of the difficulties in the family law system that are caused by an “all-too-common casual approach to compliance with court orders.”
In any event Justice Quinn used Rule 14(23) to dismiss the motion. This case serves as an important reminder that Court Orders and mandatory and are not mere suggestions of the Court.
Our firm has successfully argued two cases which have become leading decisions regarding the importance of obeying court orders and the negative sanctions that flow from the failure to do so. Both of these cases deal with one party’s failure to follow a Court Order requiring financial disclosure, which is a cornerstone of the family law system.
In the first case, Madame Justice Rogers struck out the Husband’s pleadings based on his failure to provide his missing OHIP and banking records pursuant to an earlier Order. Mr. Justice Perkins chose the same sanction for a similar failure in the second case and, in fact, his decision was confirmed by the Ontario Court of Appeal. All of these cases illustrate that Family Courts take a no-nonsense approach when it comes to breaching Court Orders, especially when said breach hinders the progression of the matter.