Judge Rules Husband’s Pleadings Stricken Due to Mistakenly Sent E-mail in Divorce Hearing

August 16, 2018

Mark Feigenbaum

In a recent case heard before the Ontario Superior Court, a husband’s errant email became a cause for the  judge to strike out his pleadings in divorce proceedings.

Husband’s Repeated Failure to Comply with Court Orders

After many months of proceedings, the wife had filed a motion to strike the husband’s pleadings. Throughout the former couple’s dispute, the husband had regularly failed to comply with several court orders, including failing to provide timely financial disclosure to his wife on several occasions, the latest being the failure to provide tax returns.

Despite having neglected to comply with his financial disclosure obligations throughout trial, the judge had given the husband significant lee-way to comply.

However, the court’s tolerance finally came to and end when the wife’s lawyer was inadvertently sent an email, intended to be sent to the husband’s bank, which demonstrated that he had only just made a request for the bank to release funds, despite that payment having been ordered 11 weeks prior.

The court noted, about the husband’s behaviour:

… what is extremely surprising, if not shocking to the court, is the fact that [the husband] sent an email to his bank only this morning requesting the money that [the prior judge] ordered to be released. The order for release of funds was made more than 11 weeks ago, yet the respondent only sent the email this morning to his bank directing them to release funds. [The husband] acknowledges that he sent the email, but was surprised that the [wife’s] lawyer had it. Then it became clear that he had sent the email to [the wife’s] lawyer by accident and he acknowledged that he had only sent it today. He had no excuse for this.

The judge further noted that the husband had made five other breaches, and that the court was not using the email to prove that the breach occurred, but rather to show the nature of the breach.

Striking Pleadings

The remedy of striking pleadings is significant, as noted by the judge:

This is a serious remedy; it removes a party from the litigation and prevents that party from having his or her side of the story placed before the court. The court must use caution in doing so, especially on the eve of trial.

Despite this, the court did note that, in this case, striking the husband’s pleadings was warranted:

… it is a serious business to breach a court order or court orders, something that [the husband] acknowledges that he has done. This is especially so, where we are on the first day of trial and the [husband] has not provided the disclosure that he was obligated to do by various court orders made throughout these proceedings … And to make this more egregious, it is more than justified where child support is in issue, and the court is left without the ability to determine the [husband’s] income to pay that child support….

The court emphasized the gravity of the husband’s actions, and ultimate their effect on child support and spousal support, noting that:

If [the husband] cannot be bothered to act on a timely basis to obtain the evidence that he needed at this trial, I do not see how he can ask his wife to undergo the costs of a full trial of the financial issues before the court.  This is especially so where the information requested is in the hands of the support payor, [the husband], and it is his job to disclose his income in a proper fashion so that child support and spousal support can be set.  To date, he has not paid support to [the wife] and she has subsisted on various funds releases ordered throughout these proceedings.

Despite the husband attempting to blame his non-compliance to provide disclosure, the judge ultimately concluded that the husband’s non-compliance was the husband’s responsibility, and that his breaches of the court orders were intentional and wilful. The husband’s pleadings were struck, and he was not entitled to participate further in the ongoing divorce trial.

The Significance of this Decision

Striking out a litigant’s pleadings is a significant step for a court to take as it means the case is entirely decided based on the arguments of the opposing counsel. Having a divorce case heard based solely on the evidence of only one of the two parties is, justifiably, not a situation in which you want to find yourself.

No matter how contentious your relationship may be with your former spouse, it is important to always cooperate and comply with your obligations (particularly when they are being enforced by court order). Not doing so can significantly complicate matters, result in additional days in court, and make the process of resolving outstanding disputes lengthier than it needs to be (and therefore also expensive).

If you are contemplating a separation or divorce, your first step should be to immediately consult with an experienced family lawyer. Prudent advice and guidance can help ensure you are meeting your legal obligations while also minimizing your financial risk. Mark Feigenbaum has worked in accounting, tax, and management positions and brings this unique perspective to his family law practice. Mark is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.


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