Aslezova v. Khanine: Strike one! You’re out!
Author(s): Melanie A. Larock
October 30, 2023
Take a coffee break with Melanie Larock and read a weekly blog post about family law decisions released by the Court of Appeal for Ontario.
The Ontario Court of Appeal in Aslezova v. Khanine, 2023 ONCA 153 (released March 3, 2023, please click here for full decision here) upheld the motion judge’s decision to strike out the husband’s pleadings as they related to the financial issues. The parties had already resolved the parenting issues and the remaining issues for trial were financial only.
The breached Order was a disclosure order made on consent. The order required the husband to produce disclosure within 45 days, failing which, he was required to produce an affidavit within 60 days explaining his efforts to obtain the disclosure and why he could not do so.
As of the hearing date of the motion (six months after the deadline for production), the husband had not delivered the ordered affidavit explaining his efforts to produce the missing documents. The husband had also provided untranslated documents in Russian. The Court of Appeal was critical of that fact and stated: “[t]he motion judge was not obliged to accept untranslated documents in the Russian language that he could not understand, as evidence of compliance with the disclosure order.”
The Court of Appeal cautioned that the willful failure to comply with financial disclosure obligations will constitute egregious and exceptional circumstances to warrant striking pleadings. The Court of Appeal noted that the husband’s failure to comply was “particularly egregious given that the order was on consent.”
The Court of Appeal rejected the husband’s argument that his pleadings should not have been struck because it was the first time a court had found him in breach of his disclosure obligations. The Court of Appeal responded that the aggrieved party should not be required to bring an earlier motion for compliance.
The husband had a history of failing to comply with other orders, including support orders. The Court of Appeal made it clear that the motion’s judge is entitled to consider a party’s past litigation conduct and failure to comply with other orders in deciding whether to strike that party’s pleadings. A party’s litigation history is relevant to the consideration of lesser remedies and whether there is any point of giving that party another opportunity to comply.
This case is a warning that multiple motions and court orders affording more chances to comply are not strictly necessary before a pleading can be struck.
About Melanie Larock
Melanie Larock is a family law litigator and a partner in Thomson Rogers’ Family Law group. Melanie’s focus is on all areas of family law with a particular emphasis on complex financial issues and high conflict parenting disputes. Melanie was trained by an illustrious litigator, and she is a self-proclaimed evidence law nerd.