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Family - Non-Compliance. Craige v. Hall
In Craige v. Hall (Div Court, 2024) the Divisional Court refused to schedule any steps in a parenting matter (here - seeking leave to appeal, extending time to commence an appeal and fresh evidence) at the request of a party who was significantly non-compliant with past orders:[7] Mr. Craige now voluntarily approaches the Divisional Court to commence a court proceeding that seeks to invoke the court’s appellate jurisdiction under Ontario law set out in s.19 of the Courts of Justice Act, RSO 1990, c C.43.
[8] The matter came before me in writing for intake triage and scheduling.
....
[12] I am not prepared to schedule an urgent case conference or any proceeding before this court at the behest of Mr. Craige while he actively breaches and refuses to comply with the orders of the Superior Court. In my view, he should not be heard to ask for the assistance of the law of Ontario when he denies and deliberately frustrates its applicability to him. In her August 30, 2024 endorsement, the judge was clear that Mr. Craige is in breach of the April 29, 2024 order and the August 20, 2024 order that he return the child. She found essentially that he acted with subterfuge to circumvent the court’s orders and that he did so without even the pretense of espousing the best interests of the child who has lived here for most of his life.
[13] Not every breach of a court order necessarily deprives a party of the right of audience before an appellate court. But the unadulterated chutzpah being demonstrated by Mr. Craige is beyond the pale. The court will not play procedural games with the life and wellbeing of a child in the balance. This matter is too urgent and too important to become mired in a panoply of procedural motions for extensions of time, to stay a cherry-picked order, then for fresh evidence, and leave to appeal.
[14] Comply first; then appeal.
[15] I am not making any order. I am simply unwilling to hear Mr. Craige’s administrative request to convene an urgent case conference or to schedule any steps in a proceeding in this court while he remains defiantly in breach of the orders made by the Superior Court judge. I leave it to Ms. Hall to determine whether or how she might wish or be advised to proceed. . Manjunath v. Kuppa
In Manjunath v. Kuppa (Ont CA, 2024) the Ontario Court of Appeal dismisses a family law appeal, here against a striking of pleadings after a history of "delay, disregard of court orders, and non-disclosure":[9] Before this court, the appellant submits that the motion judge failed to consider and apply the principle that striking pleadings is an instrument of last resort. He further submits that the order striking his pleadings contravenes the primary objective of the Family Law Rules, O. Reg. 114/99 to deal with cases justly. He relies on case law from this court establishing that pleadings should only be struck “in exceptional circumstances and where no other remedy would suffice”: Purcaru v. Purcaru, 2010 ONCA 92, 265 OAC 121, at para. 47. See also Marcoccia v. Marcoccia, 2008 ONCA 866, 60 RFL (6th) 1 and Kovachis v. Kovachis, 2013 ONCA 663, 367 D.L.R. (4th) 189, at para. 24.
[10] This argument has no traction in this case. The motion judge expressly recognized that striking a party’s pleadings is reserved for exceptional cases where no lesser remedy will redress the party’s failure to comply with court order(s). Rule 1(8) of the Family Law Rules explicitly provides direction to the court on the types of orders that may be made when a person fails to obey an order. Contrary to the appellant’s submissions, where appropriate, striking pleadings is entirely consistent with the primary objective of the Family Law Rules to “deal with cases justly” as set out at rr. 2(2) and (3):Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. [11] In Mullin v. Sherlock, 2018 ONCA 1063, 19 R.F.L. (8th) 1, this court established a decision-making framework for assessing whether pleadings should be struck. This framework includes consideration of the relevance of the non-disclosure, the context and complexity of the issues in dispute, the extensiveness of existing disclosure, the seriousness of efforts made to disclose, and any other relevant factors. Here, the motion judge did just that.
[12] We would also add that, to defeat a motion to strike, the alternative remedy or remedies proposed must be reasonable and not ones that have already proven unsuccessful as was the case here. In addition, “exceptional” circumstances, while not usual or typical, need not rise to a standard of “extraordinary” circumstances. The challenges associated with non-compliance with court orders must be answered with responsive remedies. One such remedy is to strike pleadings.
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