



COURT OF APPEAL FOR ONTARIO

CITATION: Martin v. Watts, 2020 ONCA 406

DATE: 20200624

DOCKET: C67749

Rouleau, van Rensburg and Roberts
    JJ.A.

BETWEEN

Karen Enid Elaine Martin

Applicant

(Respondent)

and

David Blair Watts

Respondent

(Appellant)

Michael Rappaport, for the appellant

Gordon S. Campbell, for the respondent

Heard: in writing

On
    appeal from the order of Justice Mary A. Fraser of the Superior Court of
    Justice dated October 23, 2019 and from the costs order dated December 3, 2019.

REASONS
    FOR DECISION

A.

Overview

[1]

This appeal turns on whether the motion judge
    erred in striking out the appellants pleadings and foreclosing his
    participation in the trial of this family law proceeding because of his failure
    to comply with various court orders.

[2]

The motion judge struck the appellants answer
    and amended answer about a month before the scheduled trial date because of the
    appellants ongoing failure to comply with several court orders to pay costs, as
    well as his share of household expenses for the matrimonial home, and to provide
    material financial disclosure. Her order provided the appellant the opportunity
    to bring a motion to determine whether he should be permitted to participate in
    some manner at trial, including the possibility of having his pleadings reinstated,
    if, within eight days of her order, he paid the outstanding amounts owing under
    the orders and provided the requisite disclosure. She also removed appellants counsel
    as his solicitor of record because of the possibility that he may have to
    appear as a witness at trial if the appellant reinstated his pleadings and was allowed
    to participate. The motion judge ordered that the appellant pay the respondent costs
    of the motion in the amount of $6,000.

[3]

The appellant did not comply with the court orders
    and request reinstatement of his answer and amended answer. In this appeal, he continues
    his challenge to his obligations under the court orders requiring payment of
    costs and household expenses and maintains that he has materially complied with
    the court-ordered financial disclosure. He alleges the motion judges order
    striking his pleadings was judicial retaliation. He also submits that the
    motion judge erred in removing his counsel as solicitor of record and that
    MacLeod J. made errors of law in deciding an earlier motion.

[4]

As we shall explain, we agree with the motion
    judges determination that the appellant failed to comply with the various
    court orders that formed the basis for her order striking the appellants answer
    and amended answer and that the appellants failure was wilful and egregious. We
    reject any suggestion of judicial retaliation. Since the appellants other grounds
    are contingent on the reinstatement of his pleadings or involve MacLeod J.s April
    19, 2018 order which is not under appeal, it is not necessary to deal with them.
    We dismiss the appeal.

B.

Issues and Analysis

(1)

The Motion Judge Did Not Err in Striking the Appellants
    Answer and Amended Answer

[5]

The appellant submits that the motion judge erred
    in striking his answer and amended answer because, contrary to her findings, he
    had satisfied the outstanding court orders to pay costs and household expenses,
    and to make further financial disclosure. According to the appellant, the motion
    judge failed to apply the correct test for striking pleadings and to consider all
    relevant factors, including materiality and proportionality. This situation was
    not, the appellant argues, one of the exceptional and egregious cases which
    fits within the test for striking pleadings.

[6]

We are not persuaded by these submissions.

[7]

The motion judge correctly referenced and applied
    the relevant legislative provisions and legal principles. As the motion judge noted,
    r. 1(8)(c) of the
Family Law Rules
, O. Reg. 114/99, permits the court
    to strike out documents filed by a party for failure to comply with a court
    order. She further acknowledged that the exercise of the courts discretion to
    strike pleadings and exclude trial participation is one that should be
    exercised sparingly, in exceptional cases, and only where no other remedy would
    suffice:
Roberts v. Roberts
, 2015 ONCA 450, 65 R.F.L. (7th) 6, at
    para. 15;
Kovachis v. Kovachis
, 2013 ONCA 663, 367 D.L.R. (4th) 189,
    at para. 24. Such an order is driven by the particular facts of each case, which
    the motion judge carefully reviewed in her decision.

[8]

We see no error that would allow us to intervene.
    It was reasonable and appropriate for the motion judge to exercise her
    discretion to strike the appellants answer and amended answer in the
    circumstances of this case.

(a)

The Court Orders Were Wilfully Breached

[9]

We agree with the motion judges conclusion that
    the appellants failure to comply with these court orders was inexcusable, wilful
    and egregious.

[10]

By October 2019, when the respondents motion to
    strike the appellants pleadings for failure to comply with court orders came before
    the motion judge, more than two years had elapsed from the commencement of the
    proceedings on September 8, 2017. The only real substantive issue in dispute in
    these proceedings was the equalization of the parties net family properties. This
    included the appellants challenge to a marriage contract that limits his share
    of the value of the matrimonial home. There had been at least nine court appearances,
    including four case management conferences. Most of them were instigated by the
    appellants unmeritorious motions and his failure to comply with court orders.

[11]

The motion judge found that the appellant had failed
    to fully comply with the following orders and that his failure to do so was unjustified,
    wilful and egregious:

1.

On May 18, 2018, MacLeod J. ordered the appellant
    to pay the costs of his unsuccessful motion in the amount of $5,500. On March
    22, 2019, Aston J. ordered these costs payable within 30 days.

2.

On December 12, 2018, Mackinnon J. ordered the
    appellant to pay forthwith the costs of his unsuccessful motion in the amount of
    $3,470.

3.

On May 21, 2019, the case management judge,
    MacEachern J., ordered the appellant to pay, starting June 1, 2019, the monthly
    sum of $900 into the parties joint account for household expenses given he was
    continuing to reside in the matrimonial home. Since the appellant moved out of
    the matrimonial home in July 2019, his obligation to pay expenses was capped at
    $900.

4.

On July 5, 2019, MacEachern J. ordered the appellant,
    among other things, to provide a complete and accurate financial statement within
    14 days and to provide statements with respect to his BMO chequing or savings accounts
    within 30 days. While the appellant had filed another financial statement on
    June 26, 2019, MacEachern J. noted that it was materially deficient and did not
    address all the issues previously identified. She had ordered, on November 19,
    2018, each party to serve and file an updated sworn financial statement,
    updated certificates of financial disclosure (Form 13A), and a comparison of net
    family properties statement. On February 22, 2019, MacEachern J. ordered the
    appellant to serve and file a sworn financial statement to update his 2017 financial
    statement within 15 days, noting that he was in breach of the November order. On
    May 21, 2019, she ordered the appellant to serve and file a complete and
    accurate financial statement by May 28, 2019.

[12]

The appellant has not complied with these orders.

[13]

First, there is no question that the appellant
    has not to-date satisfied the orders to pay costs by any payment.

[14]

The appellant maintains that he has effectively
    paid the cost orders because he is entitled to set them off against the amounts
    under the mortgage and letter of credit that he says the respondent wrongly registered
    against title to the matrimonial home without his knowledge or consent.

[15]

We agree with the motion judges conclusion that
    the appellants argument has no merit. As she explained:

While any issue of the responsibility for the
    use of and repayment of the parties joint line of credit may be an issue in
    the determination of the claim for an equalization of the net family properties
     this [does not absolve the appellant] from making the payment of costs as expressly
    ordered.

[16]

We note that the appellant did not raise this
    argument or otherwise request a set off at the time these orders were made. It
    appears that this or a similar argument was raised before the case management
    judge when the respondent signalled her intention to bring a motion to strike the
    appellants pleadings. On May 21, 2019, MacEachern J. clearly reinforced the
    appellants obligations to comply with the court orders notwithstanding his
    other claims:

The [appellants] obligation to comply with the
    existing court orders, and specifically the outstanding cost orders, was again specifically
    discussed at the case management conference on May 21, 2019.
I repeat the
    wording included in my endorsement of February 22, 2019 - the cost orders are
    binding on the [appellant]. He is required to comply with those orders.
The
    orders require him to pay $8,970 in costs to the [respondent]. Those orders are
    not discretionary. They are not a suggestion.
They are not contingent on the
    [appellants] other claims in this matter, which will be determined at trial.
The [appellant] is required to comply with the orders, and pay the costs
    forthwith. [Emphasis added.]

[17]

Second, with respect to the outstanding
    household expenses, the appellant offered no explanation for his failure to pay
    them to the motion judge or on appeal. The order was not appealed or set aside.
    As the motion judge noted, the appellants failure to comply with the order is
    wilful and egregious.

[18]

Finally, the appellant has not complied with the
    order for financial disclosure.

[19]

The most basic obligation in family law proceedings
    is the duty to disclose financial information and this obligation is immediate
    and ongoing:
Roberts
, at para. 11;
Manchanda v. Thethi
, 2016
    ONCA 909, 84 R.F.L. (7th) 374, at para. 13, leave to appeal refused,
    [2017] S.C.C.A. No. 29. As this court in
Manchanda

stated, at para. 13, 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, with the result that [t]hose who choose
    not to disclose financial information or to ignore court orders will be at risk
    of losing their standing in the proceedings as their claims or answers to
    claims may be struck.

[20]

The motion judge correctly determined that this is
    the case here. Notwithstanding several admonitions and opportunities to produce
    basic financial information, the appellant has failed to meet his fundamental disclosure
    obligations as a party to family law proceedings. We reject the appellants submission
    that he has substantially complied with his statutory and court-ordered obligations.
    While he purported to file an updated financial statement on June 26, 2019,
    this was materially deficient. No updated sworn financial statement addressing
    the identified deficiencies was filed following the July 5, 2019 order. Nor did
    the appellant provide his BMO account statements as ordered.

[21]

The significance of the appellants continuing
    and willful failure to produce material financial information was brought home
    to him on more than one occasion. As the case management judge noted in her July
    5, 2019 endorsement:

[The appellants] failure
    to provide a complete and
accurate financial statement
    almost 22 months after [the respondent] initiated this Application  prevents
    the parties, and this court, from focusing on the key issues in dispute . This
    focus is not possible without [the appellant] first providing a complete and
    accurate sworn financial statement.

In other words, the appellants
    failure to comply materially interfered with the adjudication of the dispute
    and the administration of justice.

[22]

In consequence, we find no error in the motion
    judges determination that the appellant failed to comply with the court orders
    and that his failure was wilful and egregious.

(b)

The Motion Judge Properly Exercised Her Discretion
    to Strike the Answer and Amended Answer

[23]

There is no basis to interfere with the motion judges
    conclusion that this was an exceptional circumstance in which it was appropriate
    to strike pleadings for failure to comply with court orders.

[24]

The appellant must bear the consequences of his
    continued failure to comply with court orders; a consequence of which he had
    been repeatedly warned. The appellants failure to fully satisfy these outstanding
    orders, notwithstanding the many clear reminders, directions, and further generous
    opportunities to do so, can only be interpreted as his wilful disregard and
    flouting of the authority of the court. His failure to pay them and provide full
    and accurate financial disclosure caused further needless expense and delay and
    wasted judicial resources and those of the parties.

[25]

This conduct has no place in family law proceedings,
    which are designed to promote the most expedient and least costly resolution and
    adjudication of disputes in the very difficult context of matrimonial breakdown.
    Pointed and continued disregard for legislative and court-ordered obligations undermines
    the orderly administration of justice and erodes the legitimate expectation of litigants
    and the public that these obligations will be respected. At a certain point, a
    partys non-compliance with his or her most fundamental obligations may result
    in the imposition of limits on that partys rights to participate. That is the
    case here. By his repeated failures to meet his basic responsibilities, the appellant
    has forfeited his right to participate in these proceedings.

(2)

The Process was Fair

[26]

The appellant contends that the motion judges
    order was in retaliation for his complaint to the Canadian Judicial Council about
    the motion judges judicial colleague, who had made one of the cost orders in
    issue against the appellant.

[27]

The appellants suggestion is completely unfounded.
    The appellant bears the burden of rebutting the strong presumption of judicial
    impartiality. This kind of very serious allegation must be supported by cogent
    evidence. There is no basis on the record for this suggestion. The motion judges
    reasons disclose her fair and thorough consideration of the issues before her. As
    we have explained, her conclusions are correct in law and fact. Her order allowing
    the appellant yet another opportunity for compliance and her temperate cost order
    demonstrate the fairness of her disposition of this issue.

[28]

Accordingly, this submission has no merit.

(3)

Other Issues

[29]

Other issues raised on appeal, such as the
    removal of the appellants counsel of record, are contingent on the appellant reinstating
    his pleadings or involved MacLeod J.s April 19, 2018 order. As the appellant
    did not reinstate his pleadings within the time allotted by the motion judge
    and has been unsuccessful on his primary ground of appeal, and as MacLeod J.s
    April 19, 2018 order is not the subject of this appeal, it is unnecessary for
    us to consider the other grounds raised by the appellant.

C.

Disposition

[30]

For these reasons, the appeal is dismissed.

[31]

The respondent is entitled to her costs in the
    amount of $18,500, inclusive of disbursements and applicable taxes.

Paul Rouleau
    J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.


