



COURT OF APPEAL FOR ONTARIO

CITATION: Roberts v. Roberts, 2015 ONCA 450

DATE: 20150619

DOCKET: C59616

Feldman, Hourigan and Benotto JJ.A.

BETWEEN

Mable Frances Roberts

Applicant (Respondent)

and

Orin Lennox Roberts
,
    2052544 Ontario Inc., Romek Investments Inc., Marsdale Manor Limited, 2287599
    Ontario Inc.1771726 Ontario Limited, 1701875 Ontario Inc., 2229428 Ontario Inc.
    and PJR Group Inc.

Respondents (Appellant)

Richard R. Housen, for the appellant

Brian Sherman, for the respondent

Heard: June 4, 2015

On appeal from the order of Justice Mary E. Vallee of the
    Superior Court of Justice, dated October 16, 2014.

Benotto J.A.:

[1]

This appeal involves the importance of disclosure in a family law
    proceeding. The appellants pleadings were struck by the motion judge for
    failure to comply with orders requiring him to disclose financial information. 
    He seeks to have the order overturned.

Facts

[2]

The parties were married in 2001 and separated in 2012.  Together they
    owned and operated five nursing homes.  They have no children.

[3]

The respondent commenced an application for divorce and equalization in
    January 2013.  She alleged in part that the appellant was using his companies
    to hide funds. The appellant in turn filed an Answer claiming, among other
    things, a deduction for property owned at the date of marriage, an equitable
    interest in property owned by the respondent and spousal support for himself. 
    It is clear from the pleadings that the claims and cross-claims would require
    extensive documentary disclosure.

[4]

On April 22, 2013, a few weeks after the exchange of pleadings, the
    respondent brought a motion for disclosure.  Justice McGee ordered that the
    parties exchange requests for disclosure within 20 days and that the requested
    disclosure be produced within 60 days thereafter. The parties consented to this
    order.

[5]

The order was not complied with. The respondent brought another motion,
    this one heard by Justice Mullins.  She ordered, again on consent, that the
    timeline for disclosure be amended, that the parties exchange requests for
    disclosure by February 28, 2014 and that the requested disclosure be produced
    no later than March 31, 2014.

[6]

The respondent served the request for disclosure as required.  It was
    not complied with.  Several requested items were not produced. The respondent
    brought a motion to strike the appellants pleadings.  This motion came before
    Justice Howden on June 11, 2014.  Instead of striking the pleading, he granted
    the appellant a further extension to July 20, 2014. The order provided that
    failure by the appellant to answer all requests for disclosure by this deadline
    would entitle the respondent to renew her motion to strike the appellants
    pleading.

[7]

The appellant did not answer all the requests for disclosure.  The
    respondent renewed her motion to strike the pleadings.

[8]

On September 24, 2014, the respondent moved before Justice Vallee to
    strike out the appellants pleadings for persistent and ongoing failure to
    provide court ordered disclosure.  The order was granted.

Reasons of the Motion Judge

[9]

The motion judge reviewed the history, the court orders and the
    production provided by the appellant.   She noted:

On June 11, 2014, the [appellant] assured the court that he
    would produce the outstanding items by July 20, 2014.  He was granted this
    extension. A further two months have passed and the various items remain
    outstanding.  A further order granting another extension will likely have the
    same result and is not appropriate in the circumstances.

[10]

The
    respondent was granted leave to file a motion for an uncontested trial.

Analysis

[11]

The
    most basic obligation in family law is the duty to disclose financial
    information.   This requirement is immediate and ongoing.

[12]

Failure
    to abide by this fundamental principle impedes the progress of the action,
    causes delay and generally acts to the disadvantage of the opposite party.  It
    also impacts the administration of justice.  Unnecessary judicial time is spent
    and the final adjudication is stalled.

[13]

Financial
    disclosure is automatic.  It should not require court orders  let alone three
    - to obtain production.

[14]

Rule
    1(8) of the Family Rules provides:

If a person fails to obey an order
    in a case or a related case, the court may deal with the failure by making any
    order that it considers necessary for a just determination of the matter,
    including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out 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;

(d) an order that all or part of a document that
    was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an
    order that the party is not entitled to any further order from the court unless
    the court orders otherwise;

(f) an order postponing the trial or any other
    step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13,
    s. 1.

[15]

The
    power to strike out the pleadings is to be used sparingly and only in
    exceptional cases. This is such a case.  The appellants conduct in ignoring
    court orders and failing to follow the basic principles of family law
    litigation put him in the exceptional category of cases where the judges
    discretion to strike his pleadings was reasonably exercised.

[16]

There
    are no children and thus no childrens issues here.

[17]

I
    would dismiss the appeal with costs fixed at $10,000.00 inclusive of
    disbursements and HST.

Released: K.F.  June 19, 2015

Mary Lou Benotto
    J.A.

I agree K. Feldman
    J.A.

I agree C.W.
    Hourigan J.A.


