Felizardo v. Felizardo, 2010 ONSC 2057, 2010 CarswellOnt 2089
This decision of Justice Spies from the Ontario Superior Court of Justice involves a motion by the Respondent-wife for an order to strike the pleadings of her Applicant-husband due to his failure to answer his undertakings. She also requests an order for the sale and partition of their vacation property and matrimonial home, spousal support, continued medical coverage and an interest in his life insurance policy.
The parties to this motion were married in 1990, separated in 2007 and officially divorced in 2009. The Applicant-husband was a successful business owner whose extra-marital affair, and subsequent fathering of a child, ultimately led to the breakdown of the marriage. The Respondent-wife had minimal education and job experience and due to various medical and psychological conditions, either caused or aggravated by the separation and divorce, was essentially unemployable.
The order requesting that Justice Spies strike out the pleadings was brought due to the Applicant’s complete and utter failure to comply with proper procedure, namely Rules 13 and 19 of the Family Law Rules. Not only had he failed to provide adequate and up-to-date financial information but he also failed to make an affidavit listing all relevant documents. However, notwithstanding his lack of compliance it was concluded that “striking his pleadings is too drastic a remedy at this time.” Rather, Justice Spies ordered that an additional 21 days be granted to the Applicant to answer his undertaking. Failure to do so within the specified time could then potentially result in an order striking his pleadings. Justice Spies further reasoned that since this is the first motion brought to compel the Applicant to answer his undertaking it would be out of the ordinary to instantly strike the pleadings. This recourse is usually taken after various motions have been brought as is evinced by the case of Shamli v. Shamli where an order striking pleadings was made, but only after a prior order for disclosure had been made.
Justice Spies also ordered that the matrimonial home and vacations properties be sold pursuant to s. 3(1) of the Partition Act and the net proceeds were to be divided between the parties. However, a further order was made requiring that $500.00 a month be paid to the Respondent, from the Applicant’s half, to account for the arrears stemming from an order dated January 19, 2009.
Thirdly, and based on the aforementioned inability of the Respondent to earn an income and consequently become self-sufficient, the Applicant was ordered to pay interim spousal support in the amount of $5,000.00 a month. Moreover, continued coverage under the Applicant’s life insurance policy and medical plans was granted to the Respondent.