



COURT OF APPEAL FOR ONTARIO

CITATION: Matos v. Driesman, 2018 ONCA 660

DATE: 20180724

DOCKET: C64440

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Mariette Matos

Applicant (Respondent in Appeal)

and

David Driesman

Respondent (Appellant)

David Driesman, acting in person

Michael Polisuk, for the respondent

Heard and released orally: July 16, 2018

On appeal from the
    order of Justice Paisley of the Superior Court of Justice, dated September 22,
    2017.

REASONS FOR DECISION

[1]

The appellant father, Mr. Driesman, appeals from the order of the motion
    judge, striking his pleadings.

[2]

The parties had settled all issues arising from the marriage breakdown.
    Under their agreement, the fathers income was deemed to be $120,000 per year
    and he agreed to contribute $1,000 per month towards the childrens s. 7
    expenses for the following five years. At the end of the five-year term, the
    father stopped paying these expenses.

[3]

On September 24, 2015, the mother initiated a motion to change to seek
    continued s. 7 contributions. The father opposed and sought a refund of table
    child support and s. 7 contributions in the amount of approximately $66,000.
    The father disputed that his income was approximately $120,000. At his
    questioning, he provided undertakings. They were not fulfilled.

[4]

Most significantly, the father failed to provide proof of the source of
    deposits totalling approximately $1,169,000, despite being requested to do so
    on five occasions.

[5]

In June 2017, the motion judge provided the father with clear directions
    as to how to fulfil his undertakings and put him on notice that he risked
    having his pleadings struck if he failed to comply. When the father failed to
    comply with the undertakings, his pleadings were struck.

[6]

The father submits that the motion judges order striking his pleadings
    should be set aside because the motion judge failed to provide reasons. He
    argues that he complied with his undertakings.

[7]

We reject this submission. In the context of the motions before the
    motion judge and the record, it is clear that the motion judge struck the
    fathers pleadings because he was satisfied that the fathers further responses
    did not comply with the undertakings. We are not persuaded that the motion
    judges conclusion that the father did not comply with the undertakings
    constitutes a palpable and overriding error.

[8]

The father further submits that the extraordinary remedy of striking his
    pleadings was not proportional.

[9]

We disagree.

[10]

The
    disclosure that was made was dwarfed by the size of the unexplained deposit. Given
    the parties financial situations, the size of the unexplained deposits makes
    this submission highly significant. Moreover, the mother acknowledges that the
    pleadings that were struck were only the fathers Form 15B Response to Motion
    to Change as it relates to Mesbur J.s order of April 12, 2010.

[11]

Furthermore,
    as this court stated in
Manchanda v. Thethi
, 2016 ONCA 909, 84 RFL
    (7th) 374:

After continual admonitions by the courts and the legislature
    that parties to a matrimonial proceeding must produce financial documentation,
    wilful non-compliance must be considered egregious and exceptional.

[12]

The
    father also asserts that striking pleadings here is inappropriate because of
    his child-related claim for the court to intervene in his estrangement from his
    daughter. The mother responds to this by saying that the father has not
    properly put the issues of custody and/or access previously settled before the
    court.

[13]

Again,
    we agree.

[14]

The
    appeal is dismissed. The mother is entitled to costs of the appeal, fixed in
    the amount of $10,000, inclusive of disbursements and HST.

Alexandra Hoy
    A.C.J.O.

K.M. van Rensburg
    J.A.

G. Pardu J.A.


