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Epstein’s This Week in Family Law | Failure to comply

Pleadings were struck for failure to comply with financial disclosure orders in recent Court of Appeal decision.

Epstein’s This Week in Family Law

By: Philip Epstein

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Striking Pleadings for Failure to Comply with Disclosure Orders

Roberts v. Roberts, 2015 CarswellOnt 9247 (Ont. C.A.): As Justice Benotto speaking for a unanimous Court of Appeal notes: “this appeal involves the importance of disclosure in family law proceeding”.

The husband did not comply with at least two, if not three court orders for financial disclosure. Ultimately, the court below struck his pleadings and allowed the wife to proceed with an undefended trial. The husband appealed.

Justice Benotto reminds us as follows:

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

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

The power to strike out the pleadings is to be used sparingly and only in exceptional cases. This is such a case. The appellant’s 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 judge’s discretion to strike his pleadings was reasonably exercised.

There are no children and thus no children’s issues here.

Family Law Rules have been amended in Ontario to provide for immediate and automatic financial disclosure, and many Family Law Rules in other jurisdictions provide in a similar fashion for immediate financial production.

While the striking of pleadings is supposed to be used sparingly, we are seeing an increasing number of cases in which the court is forced to this remedy.

The parties had counsel in this case throughout. It is hard to understand how counsel could not make it abundantly clear to their own client that they will not be able to proceed to prosecute or defend the claim without the requisite financial disclosure. We need to move ahead and end the game of hide and seek, and counsel need to continually remind their clients of the need to make early and complete financial disclosure. There can no longer be any excuses for delay in this area.

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