Striking Pleadings for Non-Disclosure of Financial Information

Roberts v Roberts, 2015 ONCA 450

This decision by the Ontario Court of Appeal is a reminder of the importance of full financial disclosure in family law proceedings.

Background

Married for eleven years before separating, the parties owned and operated five nursing homes together.  In January 2015, the Respondent wife commenced an Application for divorce and equalization in January 2013 and alleged that the Appellant husband was using his companies to hide funds.

After the Respondent brought a motion for disclosure, the parties consented to an Order outlining a process for exchange of disclosure requests and production.  The Applicant did not comply despite being served with the Respondent’s request for disclosure.  The Respondent brought another motion, once again consented to, and once again the Appellant failed to comply.

When the Respondent brought a motion to strike the Appellant’s pleadings, the Appellant was granted a further extension to the deadline to answer all disclosure requests.  If he failed to do so the Respondent would be entitled to renew her motion to strike his pleadings.

Subsequently, upon his failure to comply, the motions judge struck out the Appellant’s pleadings for “persistent and ongoing failure to provide court ordered disclosure.”  The Respondent was granted leave to file a motion for an uncontested trial.

The Appellant appeals the judgement striking his pleadings for non-disclosure of financial information.

Analysis

Under Rule 1(8) of the Family Law Rules, a Court may deal with the failure of a person to obey an order in a case by making any order it considers necessary for a just determination of the matter.  Specifically, subparagraph (c) permits an order striking 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.

The Court notes that the power to strike out pleading is a power which should be used sparingly and only in exceptional cases.  The Appellant’s continuous disregard for court orders and failure to follow the basic principles of family law litigation made this one such exceptional case.

The ongoing and continuous duty to disclose financial information is the most fundamental obligation in family law.  Failure to abide by this principle can cause unnecessary delay in progress, disadvantage the opposing parting, and impact the administration of justice as it wastes judicial resources and stalls final adjudication of the matter.

Financial disclosure is an automatic part of the process and should not require court intervention to compel production.  The judge’s exercise of discretion to strike the Appellant’s pleadings as a consequence of his conduct was reasonable in the eyes of the appellate court.

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.

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