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The Family Law Rules allow a party who has not been provided with adequate disclosure to move that the non-disclosing party’s pleadings be struck. This mechanism ensures that both parties put their entire evidentiary record forward, and do not hold back any relevant disclosure.

A recent decision of the Ontario Court of Appeal makes it clear, however, that the striking pleadings is an exceptional remedy that should not be used lightly.

The Chiaramonte v. Chiaramonte case is an appeal from a decision from the Superior Court of Justice to strike the husband’s pleadings on the basis that the husband had only provided ‘token’ disclosure, and was in willful breach of previous court orders to provide disclosure.

The judge had found that the husband considered himself “above the law” and was “thumbing his nose” at court orders against him. The judge found that the disclosure the husband had made was a token gesture, and was not of any value. The judge struck the husband’s pleadings and ordered that the matter proceed by way of uncontested trial.

The husband appealed to the Court of Appeal, arguing that he had in fact substantially complied with the court orders, and that he had provided reasonable explanations for any non-compliance.

The Court of Appeal allowed the husband’s appeal, ruling that “in family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice.”

While the Court acknowledged that decisions of lower courts should not be lightly interfered with, the Court said that:

“given the exceptional nature and significant implications of denying a party participation at trial, it is essential that this remedy of last resort be granted only on a proper evidentiary basis.”

The Court found that – as a matter of fact – the husband had provided a “considerable amount” of disclosure. The Court also stated that the judge had “clearly mischaracterized” the husband’s disclosure, which, according to the Court, were more than a mere token attempt at compliance.

Chiaramonte is instructive for family law litigants. While it may be tempting to view any defect in the opposing party’s disclosure as grounds for a motion to strike, litigants should heed the Court of Appeal’s warning that striking pleadings is an exceptional remedy that will not be applied lightly.

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