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MARITAL PROPERTY - Practice and procedure - Pleadings - Orders - Enforcement of orders - Appeals and judicial review

Thursday, January 19, 2017 @ 7:00 PM  

Appeal by the husband from an order striking his pleadings for non-compliance with court orders. The parties separated in 2013 following a ten-year marriage. They embarked upon high conflict matrimonial litigation, resulting in a multiplicity of court attendances and orders. Three orders in 2013, 2014 and 2015 required the husband to deposit rental income collected from jointly owned property into a jointly owned account. The husband breached those orders. In 2013, a consent order outlined agreed-upon disclosure. The wife requested 375 items from the husband. The husband responded with an affidavit with documents that he claimed provided sufficient disclosure. A judge reviewed the materials and made detailed orders for document production by the parties. The husband provided an affidavit with documents in response. The wife submitted the husband’s materials failed to fulfill the order and moved to strike his pleadings. She also sought to amend her pleading to add a claim for constructive trust in respect of the matrimonial home. The motion judge allowed the amendment and struck the husband’s pleadings. The husband appealed.

HELD: Appeal dismissed. The motion judge provided detailed reasons itemizing the disclosure made by the husband and what remained outstanding. The judge found that the breach was wilful. The judge considered a proportional response in light of the quantity and quality of disclosure made and determined the husband’s non-compliance justified the relief sought by the wife. His wilful non-compliance with the most basic of disclosure obligations occurred in the face of continual admonitions. The order striking the husband’s pleadings was justified given the exceptional and egregious circumstances. There was no basis to interfere with the exercise of discretion in favour of permitting the wife’s amendment to her claim.