Update to Child Support Guidelines in Canada, 2024, University of Toronto Press, --Judicial Guidance on Striking Out of Pleadings-- Three Recent Cases

1. In LeClair v MacDonald, 2024 NSSC 399 at paras 20-21, Smith J, of the Supreme Court of Nova Scotia, stated:?

[20]???? … I will summarize certain of the keys points a court must consider on a motion to strike a pleading:

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A pleading must sufficiently inform the defendant of the case they have to meet;

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A pleading must contain a reasonable cause of action – that is setting forth the material facts for the constituent elements of the claim;

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Pleadings must be concise but provide enough information for the opposing party to understand the claim that must be met;

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Material facts are to be pleaded but not evidence in proof of those facts;

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Pleadings should not contain opinion, argument, or irrelevant facts;

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The drafter of a pleading will be given some latitude;

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There is a high standard to show it is plain and obvious that a pleading discloses no reasonable claim …

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The pleading should not assert a cause of action against a non-party with no ability to deny or defend the claim;

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The court has an inherent jurisdiction to strike pleadings which are oppressive, frivolous, vexatious, embarrassing or an abuse of the process of the court. …

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A pleading should be read generously; and

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Pleading does not require perfection.

[21]?? ?? ?? A pleading must also not be “scandalous”.? In Capital Markets Technologies, Inc. v. Prince Edward Island, …. the Supreme Court of Prince Edward Island describes the nature of a “scandalous” pleading:

[37]?? ?? …a pleading can be scandalous when it is offensive, irrelevant, or, in addition, as in this case, constitutes a collateral attack asserting a cause of action against a non-party, leaving the non-party no ability to answer to the claim.

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2. Speaking to the striking of pleadings in El Merhebi v Guido, 2024 ONSC 2724 at paras 36-44, Bordin J, of the Ontario Superior Court of Justice, stated:

[36]?? ?? ?? ? Although not stated explicitly in the respondent’s materials, the likely avenue by which the respondent seeks to strike the applicant’s pleadings is pursuant to rule 1(8) of the Family Law Rules, O. Reg. 114/99, which provides:

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a)?? an order for costs;

(b)?? an order dismissing a claim;

(c)?? an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d)?? an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e)?? if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f)?? an order postponing the trial or any other step in the case; and

(g)?? on motion, a contempt order.

[37]?? ?? ?? ? The consequences of striking a party’s pleading are set out in rule 1(8.4):

(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

1.?? ?? ?? The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).

2.?? ?? ?? The party is not entitled to participate in the case in any way.

3.?? ?? ?? The court may deal with the case in the party’s absence.

4.?? ?? ?? A date may be set for an uncontested trial of the case.[1]

[38]?? ?? ?? ? In determining the most appropriate remedy on a motion to strike a pleading, the court must be guided in its analysis by the primary purpose of the Family Law Rules Rules, as set out in rule 2(2), which is to deal with cases justly….?

[39]?? ?? ?? ? The court’s ultimate choice of a remedy on a motion to strike a pleading should not go beyond what is necessary to express the court’s disapproval of the conduct in issue….

[40]?? ?? ?? ? In deciding whether an order striking the pleading is the sanction that will suffice, the court should first consider all of the alternative remedies outlined in rule 1(8) of the Family Law Rules to determine whether they would be responsive and proportionate responses based on the facts of the case at hand. However, those remedies are not exclusive, and the court should therefore also consider whether any other responses may suffice having regard for the unique facts of the case….

[41]?? ?? ?? ? The court’s discretion to strike a pleading should be exercised sparingly, in limited and exceptional circumstances, and only where no other remedy would suffice….

[42]?? ?? ?? ? Although striking pleadings is limited to exceptional circumstances, a party’s wilful non-compliance with disclosure obligations and orders “must be considered egregious and exceptional” having regard for “the continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation”…

[43]?? ?? ?? ? The most basic obligation in family law is the duty to disclose financial information.?This requirement is immediate and ongoing and should not require court orders. Nonetheless before striking pleadings, a court should consider not only the availability of any alternate remedy, but also the importance and materiality of any items not produced….

[44]?? ?? ?? ? The legal principles governing the exercise of judicial discretion to strike pleadings has been described as a three prong test by the Divisional Court in Van v. Palombi, 2017 ONSC 2492, at para. 30:

1.?? ?? First, is there a triggering event justifying the striking of the pleading?

2.?? ?? Second, should the pleading be struck in whole or in part, or should another remedy be implemented?

3.?? ?? Third, if the pleading is struck in whole, what are the appropriate consequences for the party whose pleading was struck?

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3. As to the functional equivalence of striking pleadings and noting in default under the current Alberta Rules of Court, see Boyer v Boyer, 2024 ABKB 727 wherein it was held that that the principles governing noting-in-default cases apply equally to those involving struck pleadings.

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