Email Fail: Message Inadvertently Sent to Opposing Counsel Convinces Court to Strike Out a Husband’s Pleadings


In a recent decision, the Ontario Superior Court of Justice struck a husband’s pleadings in an ongoing support dispute and told him that he would be unable to further participate in the proceedings. This was a result of the husband’s ongoing failure to comply with numerous court orders requiring financial and other disclosure. The final straw was an email that the husband had accidentally sent to the wife’s lawyer which was supposed to have gone to his bank requesting that the bank release none of the funds that had been ordered to be released to compensate the wife.

Husband’s Repeated Failure to Comply with Court Orders

The husband in question failed, on a number of times throughout the course of the dispute between the parties, to comply with court orders. He had ended up in court several times due to this non-compliance. During one of his last appearances in court, he was given time to provide disclosure, failing which the wife could apply to have his pleadings struck.

At a case conference several months later, a judge determined that the husband continued to be in breach of his disclosure obligations and ordered specific disclosure, noting that if he did not comply his pleadings “may be” struck.

The husband continued to be in breach of the orders to provide disclosure. He was given one final chance to obtain the tax returns that would be critical in determining support and was given an opportunity to retain a new lawyer and consult with an accountant.

Motion to Strike Pleadings

Following this, the wife’s lawyer renewed the motion to strike the husband’s pleadings, saying that she still had not received the materials they had been waiting for and arguing that there was no more room for the husband to continue to breach court orders.

In response, the husband argued that the motion was improper on a technical basis.

The motion judge disagreed, noting that there was nothing preventing the motion striking the husband’s pleadings. The judge noted the seriousness of the remedy of striking pleadings:

This is a motion under Rule 1(8)(c) of the Family Law Rules which allows the court to strike pleadings “where a person fails to obey an order in a case”.   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.

The judge then went on to say that:

…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 respondent has not provided the disclosure that he was obligated to do by various court orders made throughout these proceedings…[a]nd 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 respondent’s income to pay that child support…

The judge noted that the husband:

  • Has filed no materials in opposition to the wife’s motion to strike;
  • Failed to provide proof that he had requested the income tax returns or other financial information that he was granted a last chance to provide;
  • Acknowledged that he continued to be in default of numerous court orders for disclosure and payment;
  • Alleged that he has been “extremely stressed” by the proceedings and in not seeing his children and has been “unable to turn his mind to the litigation or deal with it.”

Email Error

The motion judge also noted that it was “extremely surprising, if not shocking” that the husband sent an email to his bank the morning of the hearing requesting that the bank release none of the funds that were court ordered to be released. By the time the email was sent, the order was more than 11 weeks old.

The motion judge noted, about the husband’s email:

[The husband] acknowledges that he sent the email, but was surprised that the applicant’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 motion judge went on to say that while the email was mistakenly obtained by the wife’s lawyer and it could be argued that it was therefore improper for the court to rely on it, ultimately the husband continued not to be in a position to comply with the court orders. Moreover, he had a duty to explain when and how he had requested any documentation to be in compliance, but that it was apparent that he had not even made any such requests. At the end of the day:

The fact that this email was only discovered by inadvertence is, in a sense, poetic justice, considering that the [husband] should have disclosed his attempts to comply with his disclosure requirements in any event.

The motion judge found 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.

The motion judge concluded that the husband’s breaches of the court orders were intentional and wilful, and ordered that his pleadings be struck. The husband was, thereafter, not entitled to participate in the ongoing trial in any way.

With more than 25 years of experience guiding husbands and wives through the stress and strain of separationdivorcesupport and custodyJason P. Howie understands your frustrations and fears.  Jason has seen all of the possible permutations when it comes to separation and divorce.  Jason is Certified as a Specialist in Family Law by the Law Society of Upper Canada and his experience and success practicing family law has earned him respect and distinction in the legal communities of Windsor and Essex County.  Jason has seen enough to know that each case must be treated differently, and that no single solution will work in every situation or negotiation.  Jason will customize an approach to meet your specific needs. To discuss your legal needs with a Windsor separation lawyer, call 519.973.1500 or contact us online.

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