Most people understand the importance of complying with court orders when going through a trial. One recent decision from the Ontario Superior Court of Justice demonstrates just how severe the consequences can be when someone ignores the court’s direction.

A pattern of neglecting orders

The motion before the court was brought by the wife who was working through a divorce with her husband. Following numerous instances where the husband had failed to follow the court’s orders, the wife brought a motion to strike the husband’s pleadings, meaning he would be prevented from any further participation in the process.

The most recent motion to strike the husband’s pleadings was not the first. The wife had brought a similar motion on November 16, 2016 after the husband failed to disclose financial records. He was given seven days to provide the records, after which the wife could apply to strike his pleadings again. The husband was found to be in breach of his disclosure obligations once again, on April 25, 2017, and again on February 7, 2018 and February 26, 2018 (on the last two occasions the court also released funds which would allow the husband to pay his lawyer and accountant to work on the minimum disclosure necessary for trial).

In her application on the motion to strike, the wife argued that “there is no room to allow (the husband) the ability to continue fighting this case when he has continued his various breaches of the orders in question.”

A motion to strike can be made under Rule 1(8)(c) of the province’s Family Law Rules. The court noted the seriousness of the remedy being sought, stating “This is a serious remedy; it removes a party from the litigation and prevents that party from having his or her side of the story placed before the court.  The court must use caution in doing so, especially on the eve of trial.”

However, the court also noted the seriousness of the husband’s refusal to cooperate, writing “(The husband) has filed no material in opposition to the motion. He did not provide proof that he had requested the income tax returns or information as to the released funds as allowed for by (the judge). He acknowledges that he continues to be in default of the various court orders in this matter both for disclosure and for payment of costs. However, he says that he has been extremely stressed by these proceedings and is not seeing his children. He says that he has been unable to turn his mind to the litigation or deal with it.”

The Email

The court had been fairly lenient with the husband, giving him multiple extensions on his deadline to oblige with the their orders. If it wasn’t for one dire error on his part, the husband may have enjoyed continued leniency. In an email accidently sent to the wife’s lawyer, the husband admitted to having not actually asked his accountant to produce his tax returns, something he had been ordered to do by the court. The court said “The fact that this email was only discovered by inadvertence is, in a sense, poetic justice, considering that the respondent should have disclosed his attempts to comply with his disclosure requirements in any event.”

As a result, the court ruled in favour of the wife, stating “In light of (the husband’s) failure to provide responding materials or to even request the funds for his accountant and lawyer until today’s date, I find these breaches to be the responsibility of the respondent and not his lawyer.  I also find these breaches to be intentional and willful.” The consequences of the decision meant the husband was not able to participate in the trial in any way, including giving evidence or cross-examining witnesses.

At Borden Family Law we have been helping our clients with their family law needs for over 17 years. We understand the difficulty of moving through divorce or separation, and have the experience and expertise to make the process as easy as possible for you while also protecting your interests and keeping your ultimate goals in mind.  Please call us at 905-576-6090 or reach us online to talk today. Please don’t forget to ask about our flat fees.