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Family - Striking Pleadings. 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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