COURT OF APPEAL FOR ONTARIO

CITATION: Burke v. Poitras, 2018 ONCA 1025

DATE: 20181213

DOCKET: C65537

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Natalie Burke

Applicant (Respondent)

and

Shawn Poitras

Respondent (Appellant)

and

Office of the Childrens
    Lawyer

Respondent (Respondent)

Mimi Marrello, for the appellant

Eric Lay, for the respondent, Natalie Burke

Julie Bergeron, for the respondent, Office of the
    Childrens Lawyer

Heard: December 5, 2018

On appeal from the judgment of Justice Hélène C. Desormeau
    of the Superior Court of Justice (Family Court), dated May 17, 2018.

REASONS FOR
    DECISION

[1]

The appellant appeals from the order made at settlement conference striking
    out the entirety of his Answer pursuant to a previous consent order, dated
    January 17, 2018 (the consent order). We have admitted the fresh evidence
    submitted by the parties since it satisfies the well-established test for
    admission on appeal.

[2]

The consent order stipulated in para. 6 that if the appellant failed to
    make all or any of the required disclosure within 30 days of the order, his
    Answer shall be struck subject to the lawyer for the [appellant], within 10
    days, returning to the Court seeking a time extension on reasonable grounds. The
    appellant never sought to extend the disclosure deadline, nor did he take any
    other steps to vary, amend, or appeal the consent order.

[3]

The appellant submits that the settlement conference judge had no
    jurisdiction to make such an order at the settlement conference. He says that
    it is contrary to the enumerated purposes of a settlement conference under subrule
    17(5) of the
Family Law Rules
, O. Reg. 114/99, and is not the kind of
    final order that subrule 17(8)  Orders at Conference  contemplates.

[4]

We do not accept these submissions.

[5]

First, subrule 17(8)(b.1), which sets out a list of final or temporary
    orders that may be made at conference so long as notice has been served,
    contains no explicit  restrictions on the kind of final order that may be made
    at a settlement conference beyond the provision of notice.

[6]

Further, and most importantly, the rules governing settlement
    conferences must be read and applied in the context of the
Family Law Rules
as a whole.  Subrules 1(7.1), (8) and (8.1) are particularly apposite:

CERTAIN ORDERS THAT MAY BE MADE AT ANY TIME

(7.1) For greater certainty,
a court may
    make an order under subrule
(7.2),
(8), (8.1)
or (8.2)
at any time during a case
, and the power
    to make such an order,

(a)
is in addition to any other power to
    make an order that these rules may specify in the circumstances; and

(b)
exists unless these rules expressly
    provide otherwise
.

FAILURE TO OBEY ORDER

(8)
If a person fails to obey an order
in a case or a related case,
the court may deal with the
    failure by making any order that it considers necessary for a just
    determination of the matter, including
,

(c)
an order striking out any
application,
answer
, notice of motion, motion to
    change, response to motion to change, financial statement, affidavit, or any
    other document filed by a party;

FAILURE TO FOLLOW RULES

(8.1)
If a person fails to follow these
    rules, the court may deal with the failure by making any order described in
    subrule (8)
, other than a contempt order under clause (8) (g).

[Emphasis added.]

[7]

The express purpose of the
Family Law Rules
is to ensure
    fairness, save time and expense, and give appropriate resources to the case
    (while allocating resources to other cases), in order to manage the case,
    control the process, ensure timelines are kept, and orders are enforced. As
    clearly stipulated in subrules 1(7.1), (8) and (8.1), an order, including an
    order to strike pleadings, can be made at any time in the process, including
    the settlement conference, to promote these overarching purposes. In this way,
    any order that promotes the overall objectives of the rules may be made at any
    time, including at a settlement conference.

[8]

The only remaining question is whether the order in this case
    represented a reasonable exercise of the settlement judges discretion in
    promoting those goals.

[9]

Here, the consent order itself put the appellant on notice of the
    consequences of his failure to comply. In addition, the appellant received
    notice, albeit short notice, that the respondent was seeking to enforce the
    consent order and strike his Answer. The appellant admitted at the settlement
    conference that he failed to comply with the consent order that required
    disclosure of a carefully itemized and substantial list of financial and other
    documentation. These were material documents necessary to permit the matter to
    proceed to trial or to properly negotiate a settlement. While the appellant
    complains of procedural unfairness, we are not persuaded that it would have
    made any difference had the respondent brought the motion to enforce the
    consent order on a different day.  There is no issue that even as of the
    hearing of the appeal, the appellant still had not complied, or even
    demonstrated good faith attempts to comply with the consent order.

[10]

The
    appellant also argues that the respondent agreed not to strike his Answer while
    their respective counsel were trying to work out disclosure and other issues.
    While the respondent provided the appellant with an indulgence, which did not
    result in significant disclosure, we are not satisfied there was an agreement
    to refrain indefinitely. More importantly, the respondents four-month
    forbearance in enforcing the consent order did not excuse the appellants lack
    of compliance with a binding and conclusive court order.

[11]

It
    is well-established that the most basic obligation in family law is the
    parties duty to disclose financial information and that this requirement is immediate,
    automatic, and ongoing. As a result, it should not require a court order to
    enforce: see
Roberts v. Roberts
, 2015 ONCA 450, 65 R.F.L. (7th) 6, at
    paras. 11-14. As this court warned in
Manchanda v. Thethi
, 2016 ONCA 909, 84 R.F.L. (7th) 374,
at para.
    13: Those who choose not to disclose financial information or to ignore court
    orders will be at risk of losing their standing in the proceedings as their
    claims or answers to claims may be struck.

[12]

This
    is because, as this court recognized in
Roberts
, at para. 12, breach
    of the disclosure obligation causes real harm:

Failure to abide by this fundamental principle impedes the
    progress of the action, causes delay and generally acts to the disadvantage of
    the opposite party. It also impacts the administration of justice. Unnecessary
    judicial time is spent and the final adjudication is stalled.

[13]

That
    is what occurred in this case.

[14]

We
    disagree that there were other means open to the settlement conference judge to
    compel compliance with the consent order and that striking the Answer should
    therefore have been avoided. After four years of protracted litigation and a
    consent order to provide specified disclosure, and despite the best efforts of
    his counsel, the appellant has still not meaningfully complied with his
    disclosure obligations as of the hearing of this appeal. In these
    circumstances, the appellants failure to honour his disclosure obligations and
    comply with a court order can only be treated as wilful disobedience.

[15]

We
    therefore see no error in the settlement judges decision to enforce the
    consent order by striking the appellants Answer on all financial matters.

[16]

Finally,
    the appellant submits that the settlement conference judge should have acceded
    to his request that the portion of the Answer responding to the issues of
    custody and access of the parties children not be struck out.

[17]

We
    agree.

[18]

Custody
    is to be decided based only on the best interests of the children.  It follows
    that the utmost caution must be used before striking a partys pleading as it
    relates to custody and access. A full evidentiary record, including the
    participation of both parents, is generally required for the court to make a
    custody decision in the best interests of the children:
D.D. v. H.D.
,
    2015 ONCA 409, 335 O.A.C. 376, at para. 1.

[19]

In
    the present case, the representation of the children by the Office of the
    Childrens Lawyer is not a complete answer to the only live question: whether
    the appellants non-participation in the custody proceeding is in the
    childrens best interests.

[20]

In
    our view, it is not.

[21]

Here,
    one son currently lives with the appellant, and custody of the other two
    children has been shared by the parties. The respondent now seeks sole custody
    of all three children. Under such circumstances in particular, the appellants
    participation is crucial.

Disposition

[22]

Accordingly,
    the appeal is allowed in part. Paragraphs 1 and 2 of the May 17, 2018 order
    shall be amended to reflect that the appellants Answer is struck out except in
    relation to the issues of custody and access.

[23]

We
    also order that this matter proceed to trial on an expedited basis. The parties
    indicated that if the court could accommodate them, they would be in a position
    to proceed to trial in three months.

[24]

While
    the appellant achieved partial success, he is still not in compliance with the
    consent order and therefore not entitled to costs of the appeal. The respondent
    is entitled to a reduced award of partial indemnity costs in the amount of $5,000,
    inclusive of disbursements and applicable taxes.

R.G. Juriansz
    J.A.

David Brown J.A.

L.B. Roberts
    J.A.