A Party to the proceedings is barred from participating at Trial

Purcaru v. Purcau, 2010 ON CA 92 (Ont. C.A.)

In this case, the parties lived together before they entered into a marriage that lasted for seven and a half years by the time they separated in 2003. There were two children of the marriage. This is an Appeal case brought by the Husband to have the rulings of the Trial Judge reversed.

During the years leading up to Trial, many Motions were brought as there was a large amount of outstanding disclosure required by the Husband along with suspicions that he had "substantial unreported income and assets." The Court had ordered various non-depletion and Restraining Orders which, for the most part, the Husband chose to ignore. The breaches of these Orders became glaringly obvious when the Husband filed his final Financial Statement before the Trial as it disclosed numerous properties, lines of credit, and other loans. It was when the Wife received the updated Financial Statement that her counsel decided to bring a Motion to strike the Husband's pleadings.

Striking Pleadings - what does it mean and when will a Court grant this sanction?

When a Court is asked to strike a party's pleadings, they are really being asked to take either the whole or part of the pleading out of the Court record. If this does not exist in the record, then the party cannot make the specific argument or, as we will see in this case, will not be able to make any of their arguments to the Court.

At Trial, although the Husband argued that he was not aware that he had been contravening numerous Court Orders, the Trial Judge did not agree and believed that he acted deliberately with the knowledge of his contraventions and did so to the detriment of the Wife. Before the decision was made, the Husband was given opportunities to remedy his conduct, but chose not to do so. In light of his behaviour, both past and present, the Trial Judge granted the Order to strike the Husband's Pleadings as the Judge believed that his participation during the Trial would be unhelpful and merely cost both parties more money. Therefore, when his Pleadings were struck, the Husband was no longer allowed to participate in the Trial except to passively observe it. The Trial judge Ordered the Husband to pay child and spousal support based solely on the submissions of the Wife and her expert evidence as the Husband was not an active participant in the proceedings.

On Appeal, the Husband argued that the Trial Judge erred in striking his pleadings and that pleadings should only be struck in "exceptional circumstances" where there are no other remedies available. The Court explained that as the adversarial system is built upon the right of both parties to have their case heard, barring one party from participating by striking their pleadings could lead to an injustice and lead to a loss of confidence in the legal system as a whole. It further stated that the risks associated with employing this remedy are higher in family law cases were an party's future ability to claim a change in circumstances could be affected by one-sided, ineffectual evidence. Overall, the court agreed that the remedy of striking pleadings is a serious one that is not to be granted in the normal course.

That being said, because of his past conduct and his behaviour during the Motion the Court suggested that other consequences would not be effective. It is important to note that the Court also mentioned that even where pleadings have been stuck and a party is denied the right to call their own evidence and thus, fully participate in the Trial, this does not preclude a Court from granting the party with leave to cross-examine the other party or make oral submissions regarding the state of the law. In this case, the Court determined that because of the Husband's egregious conduct and disregard of the law, this was not a matter in which even partial participation at Trial should be granted as it would be unhelpful and costly.

What is important to take away from this case is the fact that, although it is unlikely to occur very often, Courts have the discretion to strike a party's pleadings where the party has engaged in egregious conduct which is not able to be remedied in another other manner.

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