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Posts tagged ‘striking pleadings’

Wife’s Pleadings Struck in Light of Continuing Contempt of Court

Wife’s Pleadings Struck in Light of Continuing Contempt of Court

I a recent case heard by the Ontario Superior Court of Justice, the parties had been embroiled in ongoing divorce litigation.   The wife – who was a doctor – had failed to comply with court-ordered disclosure, in that she failed to produce certain information required and requested by the husband, such as corporate tax returns, notices of assessment, and lease agreements.  She had also failed to comply with several court orders to pay court costs, which totalled about $12,500.

The wife was found in contempt of court in August of 2011, but was given several opportunities to purge that contempt by making the ordered payments by a certain date.   She continued to neglect or resist paying, and asked for hearings on the matter to be rescheduled.   However, she failed to show up at those rescheduled hearings, claiming she was in a depressive state.  She produced a letter from her family physician, indicating that that she was under extreme mental stress and depressed, and advising that she should take time off from all legal issues.

The court ordered her to produce additional medical documentation by a stipulated date, which she also failed to do.  The court re-scheduled a few additional hearing dates, but she again failed to appear.

Eventually, the husband brought a motion to strike out the wife’s pleadings, on the basis that they should not be allowed to stand because she was in contempt, because she had failed to purge that contempt, and had failed to pay newer outstanding costs orders as well.

In response, the wife’s counsel submitted that while her compliance has “not been perfect”, this was not a case of deliberate non-compliance with the court’s orders.

The court found for the husband:  the wife’s pleadings were struck out.   Although the letter from the wife’s doctor explained her inability to attend the various hearings, the court found that it did not explain her unwillingness or inability to comply with the assorted orders to pay.  In the circumstances the court concluded:

“There comes a point at which the court cannot give any further indulgences, in the interests of fairness to the other side and the administration of justice.  … If [the wife] Dr. Nashid wishes to participate in the litigation, the onus must now be on her to take affirmative steps.”

Certainly, an order to strike the wife’s pleadings was an extreme remedy, but the court was left with no alternative in light of the wife’s continuing non-compliance, together with the lack of any evidence or indication that she ever intended to comply with the court orders in the near future.

Pleadings were accordingly struck, and husband had leave to proceed with undefended trial.  Also, additional costs orders were imposed on the wife, in order to compensate the husband for having to appear at “five attendances instead of one”, a situation that the court concluded was wholly attributable to the wife.  This was despite the wife’s claim that she was unable to pay; however, aside from one e-mail from her bank confirming that her line of credit was in arrears of about $9,000, she offered no other proof of impecuniosity.  Once again, the court found that the wife had failed to satisfy the onus on her to supply evidence in her favour in this regard.

For the full-text of the decision, see:

Nashid v. Michael, 2012 ONSC 675, additional reasons to 2011 ONSC 4713  http://canlii.ca/t/fpvks

Husband Barred From His Own Divorce Trial

Husband Barred From His Own Divorce Trial

A recent Ontario Court of Appeal decision called Purcaru v. Purcaru confirmed that – although it may not happen often – in the right circumstances courts have the discretion to strike out a party’s pleadings and effectively bar them from participating in their own litigation proceedings.

In this case, the husband and wife were married for 7.5 years and had two children. They separated in 2003 and the wife sought a divorce in 2004. However, the litigation between them was very acrimonious and protracted, and over the next few years involved numerous court attendances and motions, as well as allegations by the wife that the husband had failed to comply with disclosure obligations and various interim orders. The husband suffered from depression and attempted suicide in 2008, and his recovery stalled proceedings even further.

The trial was finally scheduled for late 2008. Immediately before it was set to begin, and based on the assertion that the husband had committed multiple and continuing breaches of various non-depletion and restraining orders by the court, the wife brought a motion to strike his pleadings entirely, which would disentitle him from participating in the trial.

The trial judge granted this request: the husband’s pleadings and financial statements were struck, and he was precluded from participating in the trial except as an observer. The judge also granted the wife’s request for a divorce and her request for monetary relief.

The husband appealed unsuccessfully to the Court of Appeal. That Court found that – while it was an option that should only be used in exceptional circumstances where no other remedy would suffice – in this case the trial judge had appropriately used the discretion that all courts have to restrict the husband’s participation in the trial. Before making the ruling the trial judge taken appropriate steps to safeguard the husband’s interests: he had given the husband the opportunity to consult a lawyer, had emphasized that the husband could be prevented from presenting his case, and had given him a chance to either remedy or explain his failure to comply with the previous orders. The trial judge had also found that the husband’s participation would prolong the trial proceedings (which would be unfair to the wife), and had clearly turned his mind to the severity and potential consequences of the sanction he was about to impose.

Still, and despite the warnings by the trial judge, the husband continued to deny any wrongdoing and showed no indication that he would remedy his misconduct or comply with his disclosure obligations. In these circumstances, the trial judge had been entitled to impose a remedy that would provide a strong disincentive against parties breaching court orders, which in this case involved restricting this particular husband’s right to participate in the proceedings at all.

For the full text of theCourt’s decision in Purcaru v. Purcaru can be found at http://bit.ly/gYzRT9

Further information on family law and related issues is also available on our main website www.russellalexander.com