



COURT OF APPEAL FOR ONTARIO

CITATION: Holly v. Greco, 2019 ONCA 464

DATE: 20190605

DOCKET: C66177

Feldman, MacPherson and Simmons JJ.A.

BETWEEN

Lauren Holly

Applicant (Respondent)

and

Francis Greco

Respondent (Appellant)

Mathew Fordjour, for the appellant

James B. C. Edney, for the respondent

Heard: May 27, 2019

On appeal from the
    order of Justice Michael R. Gibson of the Superior Court of Justice, dated October
    18, 2018, with reasons reported at 2018 ONSC 6219.

REASONS FOR DECISION

[1]

The appellant appeals from the order of Gibson J. dated October 18, 2018
    (the October Order) made on motion by the respondent to strike the
    appellants pleadings for failure to pay child support in accordance with the order
    of Miller J. dated June 7, 2018 (the June Order). On the return of the
    motion, counsel for the appellant requested an adjournment to allow time to
    file responding material. That request was denied. The October Order was then
    made striking the appellants Answer and Claim for his deliberate decision not
    to pay the child support recently ordered by the court in the June Order.

[2]

The background to the motion was the June Order made on motion for interim child support of $12,365 per month for two of the children, retroactive to January 1, 2018, as well as $9,668 per month for September 1, 2017 to December 31, 2017. That order was made on June 7, 2018 following a contested motion. Following receipt of the June Order, the appellant paid a lump sum representing the past amounts but advised that he was only going to pay $2,365 per month until January 2019, when he would make up the difference with interest. The reason for this proposed renegotiation of the June Order was that he received his employment remuneration in a lump sum at the beginning of the year. Although the respondent objected, the appellant followed through on his intention for July, August and September. He neither appealed the June Order nor did he seek to vary it.

[3]

As a result, counsel for the respondent initiated the motion to strike
    the pleadings for deliberate failure to comply with the June Order for interim child
    support. Counsel agreed on a return date of October 4, 2018. Dates in September
    were avoided because counsel for the appellant would be away for part of
    September.

[4]

The respondents material was served on September 19, 2018 while counsel
    was away. When he returned on October 1, counsel tried to get the responding
    material in place but was not able to do so before the return of the motion. He
    therefore asked for an adjournment until later in October to file responding
    material.

[5]

The request for an adjournment was denied. The motion judges view was
    that an adjournment would unfairly benefit the appellant by extending and
    facilitating his ongoing calculated non-compliance:
Holly v. Greco
,
    2018 ONSC 6219, at para. 19.

[6]

In considering the requested remedy of striking the appellant's pleadings, the motion judge first observed that the appellant has high income based on his sworn financial statements ($984,687 in 2018 for support purposes), which refuted his financial hardship claim that he could not afford to pay more than $2,365 per month. Second, he noted that the appellant neither appealed nor moved to vary the June Order, and instead "arrogated to himself the privilege of determining how much he would pay": para. 27. He then referred to the case law that cautions that pleadings should only be struck out in exceptional circumstances where no other remedy would suffice: see
Kovachis v. Kovachis
, 2013 ONCA 663, 367 D.L.R. (4th) 189;
Wouters v. Wouters
, 2018 ONCA 26, 6 R.F.L. (8th) 305;
Chiaramonte v. Chiaramonte
, 2013 ONCA 641, 370 D.L.R. (4th) 328;
Manchanda v. Thethi
, 2016 ONCA 909, 84 R.F.L. (7th) 374;
Roberts v. Roberts
, 2015 ONCA 450, 65 R.F.L. (7th) 6;
Carpenter v. Carpenter
, 2016 ONCA 313.

[7]

In applying that case law, the motion judge stated that the appellant
    never gave a valid reason either to the respondent or to counsel or to the
    court in submissions for not complying with the June Order. He therefore found
    the appellants conduct to be flagrant, wilful and a calculated disobedience of
    a court order, which deprives children of child support. He therefore concluded
    that this was one of the cases where the appellants egregious conduct required
    that the pleadings be struck out.

[8]

On appeal, the appellant submits that the motion judge had a number of
    avenues open, including to grant a brief adjournment on terms in order to allow
    the appellant to file material and stave off the remedy of striking the
    pleadings.

[9]

We do not accept this submission. While the motion judge could have
    given the appellant further time, he did not view it as unfair not to do so in
    the circumstances where the appellant had taken matters into his own hands to
    deliberately not comply with a court order and not seek the sanction of the
    court to do so. The motion judges decision not to grant the adjournment was a
    discretionary one. Our case law is clear that without a clear error of law or
    misperception of the facts, there is no basis for this court to interfere with
    a judges decision whether to grant an adjournment: see e.g.
Khimji v.
    Danani
(2004), 69 O.R. (3d) 790 (C.A.), at para. 14 (per Laskin J.A.
    dissenting, but not on this point). This is especially the case in family law
    matters where motion and trial judges case management role is so crucial to
    the process.

[10]

Similarly with respect to the remedy granted. The motion judge
    considered the record and the case law and concluded that this was one of the
    exceptional and egregious cases that fits within the test for striking
    pleadings. While we see no basis to interfere, we agree with the approach
    recently taken by this court in
Mullin v. Sherlock
,
2018 ONCA
    1063, 19 R.F.L. (8th) 1, where the court upheld a similar order striking
    pleadings, but exercised its discretion under Rule 1(8.4) of the
Family Law
    Rules
, O. Reg. 114/99, to vary the participation rights of the party whose
    pleadings were struck out. Pepall J.A. explained that the intent was to [permit]
    the husband to test the wifes claims and also [operate] to provide the court
    with a richer record on which to base its decision at the trial: para. 55.

[11]

In this case, the appellants Answer and Claim were struck out by the
    motion judge. The court was advised at the opening of the appeal that the
    appellant has now paid the arrears and is complying with the child support
    order.

[12]

So long as the appellant continues to comply, he may be entitled to participate
    in the trial and shall be given notice. The scope of his participation will be
    as permitted by the trial judge.

[13]

The appeal is allowed to that extent.

K. Feldman J.A.

J.C. MacPherson J.A.

Janet Simmons J.A.


