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“Smoking Gun” Email Helps Convince Court to Strike Out Husband’s Pleadings

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“Smoking Gun” Email Helps Convince Court to Strike Out Husband’s Pleadings

When a court “strikes out” a litigant’s pleadings, it essentially precludes that person from participating in the proceedings any further.  It is a drastic order by the court, usually in response to a situation where the person’s conduct shows that he or she is unwilling to co-operate in the orderly judicial resolution of the dispute.

In a case called Milutinovic v. Milutinovic, a wayward email by the husband – accidentally sent to the wife’s lawyer – helped convince the court to make such an order against him, since it showed that he was wilfully failing to comply with his court-mandated obligations.

Indeed, the husband had failed on numerous prior occasions to comply with court orders made in connection with his divorce from the wife, including one directing him to make financial disclosure or else the wife could apply to have his pleadings struck.  When he failed yet again to supply the information, including his long-requested income tax returns, the wife brought an application to strike as she was entitled to do.

Evidently the judge hearing that application felt inclined to give the husband yet another chance, noting that that the earlier order had stated that the husband’s pleadings “may be” struck (not “must be”).  That later judge gave the husband some extended opportunity to comply with some of his shortfalls in providing information, including providing his tax returns specifically.

Still, the husband did not provide the wife with the information she was owed.  As the trial was about the start, the wife renewed her motion to strike out his pleadings.  She claimed that there was no longer any lee-way by the court to allow him to continue with his side of the case when he had failed to breach so many of the prior significant orders.

The court began its deliberation on the issue this way:

This is a serious remedy; it removes a party from the litigation and prevents that party from having his or her side of the story placed before the court.  The court must use caution in doing so, especially on the eve of trial.

On the other hand, the court went on:

That being said, it is a serious business to breach a court order or court orders, something that [the husband] acknowledges that he has done.  This is especially so, where we are on the first day of trial and the [husband] has not provided the disclosure that he was obligated to do by various court orders made throughout these proceedings … And to make this more egregious, it is more than justified where child support is in issue, and the court is left without the ability to determine the [husband’s] income to pay that child support….

The court did consider the many excuses for non-compliance that the husband had put forward:

However, he says that he has been extremely stressed by these proceedings and is not seeing his children.  He says that he has been unable to turn his mind to the litigation or deal with it.

Noting that months ago the previous court had given him “one last chance” to at least provide the crucial income tax returns, the court concluded that the husband had simply not been vigilant about meeting his disclosure obligations.  In fact, the court had proof – in the form of an errant e-mail that the husband had accidentally send to the wife’s lawyer.  The court explained:

However, and what is extremely surprising, if not shocking to the court, is the fact that [the husband] sent an email to his bank only this morning requesting the money that [the prior judge] ordered to be released.  The order for release of funds was made more than 11 weeks ago, yet the respondent only sent the email this morning to his bank directing them to release funds.  [The husband] acknowledges that he sent the email, but was surprised that the [wife’s] lawyer had it.  Then it became clear that he had sent the email to [the wife’s] lawyer by accident and he acknowledged that he had only sent it today.  He had no excuse for this.

After itemizing yet again the husband’s many shortcomings in terms of providing disclosure over the preceding months, the court added:

The fact that this email was only discovered by inadvertence is, in a sense, poetic justice, considering that the [husband] should have disclosed his attempts to comply with his disclosure requirements in any event.

The court reiterated that the husband was in breach of at least five prior orders, most notably those that required him to provide responding materials.  (And the court was careful to note that it was not relying on the email to prove that the husband had breached the orders; it only relied on it to determine the nature of the husband’s breach, for the purposes of the motion to strike).   Although the husband had tried to blame his own lawyer, the breaches were his own fault, and more importantly were intentional and wilful.

In the end, the court felt amply justified in striking out the husband’s pleadings.  He was foreclosed from participating in the trial in any way, nor to give evidence or cross example witnesses.

For the full text of the decision, see:

Milutinovic v. Milutinovic

At Russell Alexander, Family Lawyers 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.  For more information, visit us at RussellAlexander.com

 

One Comment
  1. A Bernard #

    I have found the Ontario Family Court to be overly lenient with those who balk in the face of it. When litigants are continually permitted to break the rules of law and given extension after extension this sends the message that the court is not one to be taken seriously.
    This; of course “could” be an understandable venture for those who are self represented; however when one is represented by a lawyer in good standing this kind of thing is egregious at best. ESPECIALLY when the self represented litigant actually HAS educated themselves on the rules and complies with each one set out to the letter.
    Continual extensions of time for answers not only frustrates; in the end it costs time and money to the litigants and the courts and leaves one feeling that there are no “Family Law Rules,” merely “Family Law Suggestions.”
    Had the Justices at Family Court adhered to the Rules as they were written my particular case would have been ended within 6 months, but because of too much lenience with the respondents and allowing them a ridiculous amount of time for filing answers (over 6 months) to answer my original application (custody case) and continually allowing the respondents late filings my case stayed in the courts for 3 years!
    I am a grandparent with custody; a hard enough feat to accomplish, but when the court system itself seemingly doesn’t care about the rule of law it feels to someone like me (self represented grandparent seeking custody) like chipping away at a mountain with a toothpick!

    August 3, 2018

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