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MARITAL PROPERTY - Pleadings - Discovery - Production and inspection of documents

Thursday, February 14, 2019 @ 8:37 AM  

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Appeal by the husband from an order striking his pleadings in the parties’ family law proceedings. The parties cohabited for 13 years, including a year of marriage, prior to their separation in 2013. During the marriage, the wife was employed by the husband’s business. Her employment was terminated post-separation. Several consent orders required the husband to provide extensive corporate and personal disclosure. The motion judge found the husband failed to provide several documents and answers to undertakings. He found the husband’s failure to provide disclosure was a deliberate attempt to frustrate the wife’s efforts to establish her claims. He concluded it would be highly unfair to require the wife to proceed to trial without the information found on the husband’s financial statements to quantify the husband’s income and net family property. He struck the husband’s pleadings and gave him limited participation rights.

HELD: Appeal dismissed. The motion judge had considered other possible remedies and had properly acknowledged striking a pleading was a serious remedy. He properly concluded the husband had failed to comply with disclosure orders. The repeated orders and repeated non-compliance by the husband permitted the conclusion that the husband’s breach was intentional. The motion judge did not err in resorting to the strike out provision found in Rule 1(8)(c) of the Family Law Rules. The order was varied to specify that the husband’s Answer was struck out. The motion judge erred in his determination of the parameters of the husband’s trial participation. The husband’s trial participation rights were varied to permit him to make opening and closing statements and to cross-examine the wife and her witnesses. Allowing those rights was proportionate to the husband’s actual non-disclosure but allowed for a fair adjudication of the issues.

Mullin v. Sherlock, [2018] O.J. No. 6743, Ontario Court of Appeal, S.E. Pepall, L.B. Roberts and B. Miller JJ.A., December 21, 2018. Digest No. TLD-February112019007