Court Cases & Orders

If You Are Not Following the Rules, Must the Court Still Help You?


If You Are Not Following the Rules, Must the Court Still Help You?

An interesting fundamental legal question is whether a disobedient litigant – meaning one who is in non-compliance with court orders – should nonetheless be allowed to participating in the ongoing proceedings, much less ask the court to make rulings in his or her favour.

The answer is: “It depends”.

The court was asked to make a ruling on that precise issue in a recent Ontario case called Cinapri v. Fleck. There, the parents had settled their disputes over custody and access of their three-year-old child by way of a lengthy Order that had been mutually agreed-to (i.e. a Consent Order).

However, the father claimed that the mother had later breached that Consent Order in several ways; the mother countered by saying he was being unduly technical, unreasonable, and hyper-vigilant about her level of compliance.
The father went before the court to ask that, in light of the mother’s various breaches and disobedience, she be prevented from coming back to court to ask for any orders. He made the request under Rule 1(8) of the Family Law Rules, which lists an arsenal of remedies a court can use in situations where a person fails to obey an order in a case (and it can be any order that was breached, no matter who obtained it in the first place).

And note that in this case the father was not asking to find the mother in contempt of court; that is a different sanction altogether and is governed by slightly different considerations and procedures. Instead, the father was asking the court to exercise its power under Rule 1(8) to make any order “it considers necessary for a just determination of the matter”, including dismissing the mother’s claim entirely, striking out any documents she may have filed, or barring her from obtaining any further orders until the court decides otherwise, among other things.

In this context, the court followed an established three-step process for determining whether to grant a remedy against a non-compliant litigant in these situations. The first step is to determine whether there is a “triggering event” – i.e. a specific order that was not obeyed, which in turns involves examining the precise wording of the order as compared to the disobedient person’s conduct. Secondly, if such a triggering event indeed occurred then the court will look at whether in all the circumstances the litigant should be sanctioned. Finally, if the answer is “yes”, then the court has a very broad discretion to order an appropriate remedy.

In applying that process to the facts in Cinapri v. Fleck, the court undertook a detailed examination of seven paragraphs of the Consent Order that had been reached between the parents, and gauged them against the mother’s conduct and level of compliance. After considering the evidence, it found that the mother had only failed to comply with relatively minor parts of that Consent Order in connection with the child’s health card and changing her name. The court therefore directed the mother to take immediate steps to fulfill her court-ordered obligations in those respects.

For the full text of the decision, see:

Cinapri v Fleck, 2016 ONSC 1297 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.