The Ontario Court of Appeal recently upheld a lower court’s ruling that struck the pleadings of a husband who had failed to comply with multiple court orders throughout a lengthy and contentious divorce process. The wife will be allowed to move forward with further court proceedings and an uncontested trial without the husband’s participation.

What Happened?

The wife began divorce proceedings in September 2015. For almost two years she attempted to obtain disclosure and valuation reports and proceed to trial. Numerous case conferences and motions took place as the wife attempted to obtain financial information from the husband to be able to ascertain appropriate levels of child support, spousal support, and equalization payments. The husband lost the majority of these conferences and motions and was ordered to pay costs.

Over the course of these various legal proceedings, the husband was also ordered, to, among other things:

• File his most recent corporate financial statement and tax return;
• Provide an expert valuation of his interest in a corporation;
• Produce an income analysis.

The husband either failed to produce these documents, failed to comply with deadlines for producing these documents, or produced incomplete documents.

In December 2016, Justice Myers ordered the father to pay ongoing child and spousal support based on an income of $362,000, and to pay support arrears (i.e. backpay). The husband failed to pay the support arrears, did not appeal the order to pay, and did not seek any extension of time to comply with payment. He was given another chance to comply, but again did not do so.

The husband changed lawyers in May 2017, and eventually produced an income report, but told the court he did not intend to rely on it. He also sought and was granted an adjournment on the basis that he would provide the court with a formal letter stating that he would not be relying on the income report and outlining his reasons why. He was then directed to provide an income report on which he actually intended to rely. No such additional report was ever provided.

In the summer of 2017, Justice Horkins told the husband that his pleadings would be struck (i.e. his arguments in support of his position would be thrown out) unless he:

• Paid all arrears (i.e. money owing to the wife) owed as of August 1, 2017 with proof of payment provided to the wife’s lawyer;
• Provided the wife’s lawyer with an expert income report;
• Paid $7,500 in costs to the wife stemming from previous hearings in this matter.

The court warned that if the husband did not comply with these directions, the wife would be granted permission to proceed with an uncontested trial.

The husband failed to comply with any of these directions by the timeline provided by the court. As a result, in October 2017, Justice Paisley signed an order stating, among other things, that:

• The husband’s pleadings were struck;
• The wife could proceed with an uncontested trial;
• The husband would pay the wife costs (which had now ballooned to $12,500); and
• An advance on equalization to the wife would be made totaling $85,000.

When the husband received a copy of Justice Paisley’s order he changed lawyers and filed for appeal of that order.

The Court of Appeal

The Court of Appeal dismissed the husband’s appeal, noting he was “in essence” attempting to appeal the underlying order of Justice Horkins, which had provided the basis for Justice Paisley’s later order. The husband had not appealed Justice Horkins’ original order, did not apply for any extension on the deadlines provided by that order, and that:

This contentious family law litigation has been ongoing for much longer than it should primarily because of the [husband’s] refusal to obey orders of the court.

The Court of Appeal noted that in September 2017, before Justice Paisley’s order was issued, the husband had “finally” taken some steps to comply with the various orders previously issued. That month, he attempted to demonstrate, through the sworn affidavit of his personal assistant, that there were no arrears of support owing, and alleged that several payments made by his company should be credited as support payments.

The Court of Appeal noted that the assistant’s affidavit was “highly contentious” and that most of it could not be considered support related. There were also some questions as to whether Justice Paisley had been aware of the affidavit when he made his order. However, the Court ultimately noted that:

The [husband] was given numerous chances to comply with and meet his obligations – he simply refused. Not until the very last minute did he take any steps to attempt to show he was not in arrears in respect of the support orders. He still had not complied with the obligations requiring financial production and unilaterally reduced his support payments. He remains in serious violation of a number of court orders.

The Court of Appeal also noted that “long after this appeal was listed for hearing and one week before the appeal was to be argued” the husband had filed a motion for fresh evidence.  That fresh evidence was the husband’s own affidavit sworn on March 13, 2018 which alleged that: “these materials were intended to prove that I had in fact, directly/ or indirectly, paid Angela considerably more than the ordered support … and that there were therefore no arrears of support.”

The Court of Appeal further noted that:

The only reasonable conclusion on all the evidence before this court is that the [husband] simply does not accept that he is in arrears of support. In his view, payments made by his company, some going back a number of years before the support order was made, constitute compliance with those orders. He is mistaken. He remains in non-compliance to this date. He has had many, many chances to rectify his situation but refused to do so. If court orders are to have any meaning they must be respected.

The Court concluded by noting that there is no merit in the husband’s appeal, and that Justice Paisley’s order was reasonable and correct. In dismissing the appeal, the Court ordered the husband to pay the costs of the appeal, which were $14,000.

Lessons Learned

Family law matters are emotional, stressful, and overwhelming. The resolution of such issues, whether through mediation or litigation can be lengthy and drawn-out. It is never advisable to prolong these disputes through unreasonable or difficult behaviour. Individuals involved in family law disputes should be realistic and choose their battles appropriately.

If you have questions about family law, including about separation, divorce, or related matters such as custody and access, child support, spousal support, and other issues, contact the knowledgeable family lawyers at Rapley & Co to see how we can be can be part of your resolution team. You can reach us online or at 416- 369-1999.