2017 ONSC 4087, 2017 ONSC 4087

CITATION : Bennett v. Davoodian, 2017 ONSC 4087 COURT FILE NO.: 829/10 DATE: 2017-06-30 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Lisa Jayne Bennett, Applicant AND: Roham Davoodian, Respondent BEFORE: The Honourable Madam Justice L. Madsen COUNSEL: Shadi Behpour, Counsel, for the Applicant Self-Represented Respondent, Not in Appearance HEARD: June 23, 2017 ENDORSEMENT [ 1 ] The Applicant brings a Motion to strike the pleadings of the Respondent for non-compliance with disclosure Orders.

In the alternative she seeks certain specified disclosure which will be addressed below. [ 2 ] The Respondent was served by mail on June 8, 2017 with the Applicant’s Motion materials. There were no responding materials filed in the Record and the Respondent did not attend. [ 3 ] For the reasons set out below, the Court is not prepared to strike the Respondent’s pleadings at this time, without prejudice to the Applicant to renew her Motion as set out below.

Background [ 4 ] The parties had a three year relationship between 2005 and 2008 and have one child together, who is now 11 years of age. [ 5 ] The Applicant started proceedings in May 2010 seeking Orders related to parenting, child support, and costs. The file was active in 2010 when motions were brought regarding temporary parenting arrangements and in late 2010 an OCL Investigator was appointed. The Investigator served her report on July 19, 2011. The file matter was then dormant for almost five and a half years until a Conference Notice was served by the Applicant on September 15, 2016.

There were no motions with respect to child support or disclosure in the intervening period. [ 6 ] Following the Conference Notice, there was a settlement conference on December 7, 2016 and a further Settlement Conference on March 1, 2017. While the Respondent attended, he did not file briefs for either appearance notwithstanding his obligation to do so. [ 7 ] The Applicant states that the Respondent has never provided adequate disclosure in this case and that what has been provided has been incomplete.

He produced a sworn financial statement in 2010 and a draft, unsigned financial statement in December 2016 which has virtually no information in it. [ 8 ] The Applicant states that while the Respondent’s financial statements show very minimal income ($7,794 per year on the 2016 financial statement), this cannot be accurate, as she has information that he has been able to travel with his new family, and is apparently building a home on Wasaga Beach. Therefore, not only does she find his disclosure to be inadequate, but she also does not believe the information set out therein.

She is frustrated that he does not appear to be taking the process seriously. [ 9 ] The Applicant states that the Respondent has paid little child support, on an unpredictable basis, but that even this ceased in February 2017. Disclosure [ 10 ] The Applicant asserts that the Respondent failed to comply with two Orders for disclosure made by Justice Brown at the settlement conferences in December 2016 and March 2017 and it is on this basis that she brings the Motion to strike. [ 11 ] The Orders of Justice Brown required the following disclosure: a. December 7, 2016:

i) Proof of income for 2010 to 2016;

i) Proof of efforts to find employment since 2010; ii) If the Respondent is relying on health issues as the basis for his minimal income, a comprehensive medical report detailing his diagnosis, prognosis, compliance with treatment, and impact on ability to work either part time or full time; iii) Documentation with respect to the power of sale of the house; iv) A financial statement (to be produced by both parties). b. March 1, 2017:

i) In addition to previously ordered disclosure, copies of all tax returns and notices of assessment for the period 2010 – 2016 (provided he has filed, and if he has not filed, proof of all income for the non-filing years) along with proof of year-to-date income from all sources and in particular with respect to the motor vehicle accident claim. [ 12 ] The Applicant indicates that the following disclosure ordered by Justice Brown remains outstanding: i) 2011, 2012, 2013 and 2016 Notices of Assessment; ii) 2014 and 2015 Income Tax Returns; iii) Proof of year-to-date income information for 2017; iv) Up-to-Date Financial Statement;

v) Proof of efforts to find employment since 2010; vi) Particulars of income or monies received from his motor vehicle accident claim, if any; and vii) If the Respondent is relying on health issues as the basis for his minimal income, a comprehensive medical report detailing his diagnosis, prognosis, compliance with treatment, and impact on ability to work either part time or full time. [ 13 ] The Respondent did provide his 2010, 2014 and 2015 Notices of Assessment and his 2016 income tax return, as well as the ordered documentation regarding the power of sale on the house.

Striking Pleadings [ 14 ] Section 1(8) of the Family Law Rules permits the striking of pleadings in certain circumstances: FAILURE TO OBEY ORDER

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including, (

a) an order for costs; (

b) an order dismissing a claim; (

c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (

d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (

e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (

f) an order postponing the trial or any other step in the case; and (

g) on motion, a contempt order. O. Reg. 322/13, s. 1 [ 15 ] Although I understand the Applicant’s frustration with the Respondent’s financial production in this case, I find that the test for striking pleadings has not been met. [ 16 ] In family law cases, pleadings should only be struck and trial participation denied in exceptional circumstances and where no other remedy would suffice. See Purcaru v. Purcaru , 2010 ONCA 92 at 47 as cited in Chiaramonte v. Chiaramonte 2013 ONCA 641 .

As has been stated, “The remedy of striking pleadings has the most drastic impact on a party that is not in compliance with Court Orders and should only be imposed in the most egregious circumstances.” Grenier v. Grenier , 2012 CarswellOnt 13512 . [ 17 ] As noted by the Court in Purcaru , supra , the exceptional nature of the remedy is rooted in the significance of the adversarial system: The adversarial system, through cross examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained wherever possible.

Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the Court. Purcaru , supra , at 49.

[18] The well-established test governing the exercise of judicial discretion to strike pleadings is as follows:

(1) Is there a triggering event justifying the striking of pleadings?

(2) Is it appropriate to strike pleadings in the circumstances of this case?

(3) Are there other remedies in lieu of striking pleadings that might suffice?See Chiaramonte, supra; Purcaru, supra [19] In applying the test to the facts of this case, I find as follows: [20] There is a triggering event which would justify the striking of pleadings, namely the Respondent’s failure to comply with twoOrders of Justice Brown for the production of financial disclosure which is essential to the just resolution of this case.

As he has chosennot to respond the motion, the Court has no evidence regarding any reason or justification the Respondent might advance for his non-compliance. [21] Applying the second branch of the test, I find that it is not appropriate to strike pleadings in this case for several reasons. [22] First, there is an unresolved parenting component to the litigation. While there is a long status quo since the case waspreviously active in 2010/ 2011, the Court has little if any current information about child-related issues.

The Court of Appeal has heldthat special care must be taken in family law cases where the interests of children are at issue. See King v. Mongrain (2009) 2009 ONCA 486 , 66 R.F.L. (6th) 267 in which Justice Gillese held that pleadings should not be struck if such a remedy could leave the courtwith insufficient information to determine child-related issues. [23] Further, this Court is not convinced that the striking of pleadings will assist in the resolution of the financial aspects of thecase.

The Court has held that without the participation of a party, there is a risk that the court will not have the necessary information toreach a just result. Hence, the Court’s “cautious and restrained” approach to motions such as these. See Kovachis v. Kovachis, 2013CarswellOnt 15040. Striking pleadings in this case will not assist in ensuring that the ordered financial disclosure – which is essential tothe just and accurate determination of the financial issues in this case – is made available.

The Applicant in fact needs much of thatdisclosure to determine what the Respondent’s income is or ought to be so that child support may be determined. [24] On the third branch of the test, that is, whether there are other remedies that would suffice, I find that there are. An Orderstriking pleadings is too draconian in the circumstances and would likely not achieve the ultimate objective: allowing the Court to fairlyadjudicate the matter. Below I set out a detailed disclosure Order with time-lines, for the production of the disclosure which has beensought.

Further Disclosure Sought [25] If the Court declines to strike pleadings, the Applicant seeks certain additional disclosure beyond that which is stilloutstanding under Justice Brown’s Orders. [26] In particular, she seeks disclosure of the Respondent’s wife’s income tax information for the period 2010 – 2016. [27] I have not been provided with sufficient information in the Applicant’s affidavit to make the Order sought with respect to theRespondent’s wife’s income tax information. Nor does she appear to have been served with the Motion material.

Having said that, in theOrder below I address information required from the Respondent with respect to his wife’s income. This is without prejudice to theApplicant renewing her request once the relevance of the information sought has been established. [28] She also seeks corporate income tax returns and notices of assessment of R&PD Farmfresh Deli Inc. from 2010 to the present.The Applicant’s evidence is that the Respondent is a Director of that corporation which she says is owned by the Respondent and hisparents.

She has attached to her affidavit material a document entitled “Federal Corporation Information 917732-9” which shows theRespondent as one of four Directors of that corporation. The Applicant is worried that the Respondent’s family is sheltering his incomein the corporation. [29] I am prepared to grant the Order sought with respect to the corporate income tax information of R&PD Farmfresh Deli Inc.This information would be essential to determining the Respondent’s income for support purposes. The Order is set out below.

Conclusion and Order [30] As has been stated repeatedly by Family Court judges, full, frank, and timely disclosure is essential to the orderly and justresolution of family law cases. Court Orders are precisely that. They are Orders, not suggestions. [31] The Respondent’s failure to comply with two Orders of this Court is very concerning and it is delaying the resolution of thismatter.

While for the reasons set out above this Court is not prepared, at this time, to strike his pleadings, this is without prejudice to theApplicant to renew her motion on 14 days’ notice following the expiry of the timeline set out below, if the Respondent does not complywith the disclosure Order set out herein. [32] Accordingly, I make the following Order: 1. Within 60 days of the date of this Order, the Respondent shall provide the following documents to the Applicant’s counsel:

a) The Respondent’s 2011, 2012, 2013 and 2016 personal Notices of Assessment;

b) The Respondent’s 2014 and 2015 personal Income Tax Returns;

c) Proof of the Respondent’s year-to-date income information for 2017;

d) An up-to-date Financial Statement, Form 13.1 (Support and Property), with all sections completed;

e) Summary of and proof of the Respondent’s efforts, if any, to find employment since 2010;

f) Particulars of income or monies received by the Respondent in relation to his motor vehicle accident claim, if any;

g) If the Respondent is relying on health issues as the basis for his minimal income, a comprehensive medical report detailing his diagnosis, prognosis, compliance with treatment, and impact on ability to work either part time or full time;

h) If the Respondent is not relying on health issues as the basis for his minimal income, then an Affidavit attesting to that fact;

i) An Affidavit from the Respondent setting out 1) the nature of his wife’s employment, if any; 2) her annual income as shown in Line 150 of her tax returns for the years 2010 – 2016, as well as her current rate of pay; and 3) the extent to which she contributes to the ongoing expenses of the household;

j) Corporate income tax returns with all schedules and attachments and notices of assessment of R&PD Farmfresh Deli Inc. (Corporation # 917732-9) from 2010 to the present; and

k) If the Respondent is unable to obtain or produce any of the above documents/ information within the above-noted timeline, an affidavit clearly detailing the specific efforts he has made to obtain those documents/ information and why he has been unable to obtain same. COSTS [ 33 ] The Applicant may provide brief costs submissions by July 21, 2017. Brief responding submissions, if any, will be accepted by August 18, 2017. Reply submissions if any, will be accepted until August 25, 2017. Madsen, J. Date: July 30, 2017