Can Courts Strike a Party’s Pleadings When Parenting Issues Are in Dispute?


Non-compliance with a court order comes with serious consequences. For instance, a party may not be permitted to obtain relief from the courts while they are in breach of an order, and judges have the discretion to stay or strike the pleadings of the defaulting party. However, when parenting issues are in dispute, which must be decided based on the children’s best interests, can a court limit a party’s participation in the proceedings?

Courts Can Sanction Parties for Failing to Comply With Court Orders 

Courts may deal with a party’s non-compliance with court orders in various ways. Specifically, rule 1(8) of the Family Law Rules provides that a court can deal with the failure by a party to obey an order by finding that the party is not entitled to a further order from the court, or striking out any notice of motion or other document filed by the party. 

In Pearce v. Kisoon, a consent order gave the applicant sole decision-making responsibility of the parties’ child. This was followed by an uncontested trial, in which a final order was made. The respondent brought a motion to change the final order, seeking contact with the child and terminating his child support obligations. In response, the applicant argued the respondent was in breach of the final order and that the court should exercise its discretion to stay the respondent’s motion pending the payment of outstanding costs and support arrears of $12,928.20.

Courts Have “Discretion Not To Entertain An Application By A Payor Spouse Who Is In Continuous Default”

The respondent acknowledged that courts have wide discretion to sanction a party for their failure to obey a court order. However, while the respondent admitted that his motion could be stayed pending the payment of the outstanding costs in the sum of $4,500, he claimed it could not be stayed pending his payment of the child support arrears since those arose under the order he sought to change. Additionally, he argued that if a stay was imposed, it should only relate to the financial aspects of the final order and not to his claim to be granted contact with the child since that claim related to the child’s best interests. 

In Burley v. Burley, the Ontario Court of Appeal confirmed that courts have “discretion not to entertain an application by a payor spouse who is in continuous default.” However, there are additional factors judges must consider. In Sgro-DeGiosaffatte v. DiGiosafatte, the court considered how to approach the question of a stay arising because of the non-payment of the order that sought to be changed. The judge suggested it is appropriate to weigh the merits of the motion to change against the arrears of support, and to consider “whether an adequate explanation has been given for nonpayment”. 

On this basis, in Pearce, the judge found the respondent had not given a satisfactory explanation for the discrepancy in claiming that he had not worked since 2017, while his reported income was more than $63,000. Here, it was not appropriate to exercise discretion in favour of the respondent, given his default in paying child support when he clearly had the means to do so. 

Respondent Claims Parenting Issues Must be Considered Separately 

There was also the question of whether the stay should be applied to the parenting aspects of the respondent’s motion. The respondent argued there was a distinction between the financial and parenting issues when it came to striking the pleadings of a party who was not in compliance with a court order and that parenting issues could only be decided based on the best interests of the children. 

There was some support for that argument, as in the case of King v. Mongrain, the Ontario Court of Appeal indicated that courts must be cautious before striking a party’s pleadings when decision-making and parenting matters are in dispute. The court noted that a full evidentiary record is critical to decide these issues, and that to make “decisions in the best interests of the child, the court needs the participation of both parties”. Moreover, since courts can only consider the child’s best interests, courts have underlined that they cannot grant decision-making responsibility to a parent to punish the other for non-compliance with a court order. 

Courts are Cautious Striking Pleadings When Parenting Issues Are at Stake

Despite the general principle in King v. Mongrain, the court in Pearce found there was a difference between striking out the defaulting party’s pleadings where parenting and decision-making are in issue where “there has been no final order made on those issues” compared to a motion to change a final order dealing with parenting and decision-making brought by the defaulting party. 

Here, the judge found that that different consideration applied when “it is the party in default who seeks to change a final order in which the best interests of the child respecting” decision-making and parenting time “have already been determined”. In these instances, the caution against striking or staying proceedings “may not carry the same force where it is the defaulting party who seeks to invoke the jurisdiction of the court to vary an existing final order…and the non-defaulting party simply seeks to have the final order upheld”. 

Courts Can Consider the Litigation History Before Making a Decision 

The court noted that it would not necessarily be appropriate in every case to stay a motion to change a final order concerning parenting brought by a party in default. Instead, rule 1(8) gives courts discretion to “craft an appropriate remedy to address a failure of a party to obey a court order in the particular circumstances of each case.” Moreover, subrules 2(2) and 2(3) of the Family Law Rules direct courts to deal with cases justly and to ensure that the procedure is fair to the parties. 

Looking at the background of this proceeding, the judge noted that the final order was made on consent and granted decision-making responsibility to the applicant. It did not contain any provision for contact between the respondent and the child. Although the respondent claimed he wanted to have a relationship with his son, there was no evidence that contact with the respondent would be in the child’s best interests. Finally, in the court’s view, allowing the respondent to proceed with the motion, given his defaults, would not be dealing with the case justly, as the applicant would incur costs defending the existing order. In contrast, the respondent defaulted on child support and other costs.

Consequently, the respondent’s motion to change was stayed pending the payment of outstanding costs and support arrears. 

Parenting Issues Will be Decided on Child’s Best Interests

When deciding parenting issues and a child’s best interests are at stake, courts are cautious about striking a party’s pleadings even if they do not comply with a court order. Determining a child’s best interests will usually require both parties to participate. However, different considerations arise if the defaulting party wishes to change a final order that has already dealt with parenting issues. 

Contact Johnson Miller Family Lawyers for Trusted Advice on Parenting Disputes

The trusted family law lawyers at Johnson Miller Family Lawyers in Windsor focus exclusively on family law matters and work closely with clients to understand their circumstances. We will provide you with comprehensive legal solutions tailored to your unique situation. We ensure that each client understands their rights, obligations and options at every process step. To discuss your parenting matter with a member of our family law team, contact us online or call our office at 519.973.1500.

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