Judges repeatedly emphasize that court orders are not suggestions and must be complied with. And any non-compliance will have consequences. When faced with a party’s non-compliance, courts have discretion in dealing with the failure and imposing an appropriate remedy. But the defaulting party will bear the onus of demonstrating that extraordinary circumstances justify their non-compliance. Nevertheless, courts are wary of striking a party’s pleadings, and will do so when no other remedy will suffice. The Divisional Court recently considered these principles, finding that the father should have an opportunity to remedy his non-compliance and make the outstanding payments before his motion to change based on his reduced income could proceed.

Father Brings Motion to Change Based on a Reduced Income

In Zolnai v. Zolnai, the appellant mother brought a motion to strike or stay the respondent father’s motion to change a final order on the basis that he was in breach of an outstanding court order. There was no dispute that the respondent failed to make various payments he was required to make under the 2019 order, including: an equalization payment of $75,000, outstanding arrears of $24,000 for retroactive spousal support, $58,000 for retroactive child support, as well as failing to make ongoing child support and spousal support payments. The respondent later moved to modify the child and spousal support provisions of the 2019 order. He argued that his business declined due to the COVID-19 pandemic and that his income decreased as of March 2020. His income had previously been imputed at $200,000, but his 2020 income was $70,896, including CERB payments he received during the pandemic, suggesting a material decrease in his income. The appellant’s motion to strike was dismissed, and she appealed that decision.

The respondent claimed that the payments he was ordered to make exceeded his ability to pay. However, on review, the Divisional Court emphasized that even if the respondent succeeded on his motion to change, it would not alter the arrears he owed. The Court also emphasized that prior cases have been clear that non-compliance with court orders must have consequences.

Court Has Discretion in Dealing With a Party’s Non-Compliance

The appellant brought her motion under Rule 1(8) of the Family Law Rules. That provides that “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” amongst others, making an order for costs, ordering the payment of a penalty or fine, an order striking out an application, motion to change, or any other document filed, or an order that the party is not entitled to any further order from the court.

The parties agreed that a three-part test must be applied when a judge considers whether to make an order under Rule 1(8). However, the parties disagreed on whether the motion judge applied the correct test. In Pye v. Pye, the judge outlined the test for striking a pleading. The court must determine:

1. Whether there has been non-compliance with an order in the case or a related case.
2. Whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning the party under Rule 1(8). The case law suggests this discretion should be exercised only in exceptional circumstances.
3. If the court decides not to exercise its discretion in favour of the non-complying party, it has broad discretion to adopt an appropriate remedy.

As well, Ferguson v. Charlton acknowledges that in exercising its discretion, the court should take into account the relevant history of the litigation and the conduct of the non-complying party.

In this case, the motion judge cited three decisions in applying the three-part test. On review, the Divisional Court acknowledged that the wording in those cases differed from the wording stated by the motion judge. Specifically, the second part of the test, as set out by the motion judge, required the court to find exceptional circumstances to sanction the non-complying party. In contrast, the case law establishes that “a court is required to sanction a non-complying party unless they find exceptional circumstances”. In Pearce v. Kisoon, the judge was of the view that the non-complying party, who is seeking relief from the court, must demonstrate why it would be appropriate for the court to exercise its discretion in its favour. But in Zolani, the motion judge reversed the onus.

The Court Must Decide on an Appropriate Sanction

The respondent cited Van v. Palombi to support his position. In that case, the court did not overturn the motion judge’s decision to strike the father’s pleadings because he had failed to pay amounts owed under three cost awards to the mother. But, the Court did modify the order to permit the father to participate in the trial determining parenting issues. The Court set out three considerations before striking a party’s pleadings:

– Is there a triggering event justifying the striking of pleadings?

– Is it appropriate to strike the pleadings in the circumstances of the case?

– Are there other remedies in lieu of striking pleadings that might suffice?

The case also emphasized that a party’s pleadings should be struck and trial participation should be denied only in exceptional circumstances where no other remedy would suffice. But as the Divisional Court noted, the cases referred to Van dealt with striking pleadings before trial, not a motion to change a consent order. Yet, in putting the two lines of cases together, the Divisional Court concluded that it is exceptional not to sanction a non-compliant party, but that in deciding the appropriate sanction, “courts should be wary of striking pleadings and should only do so in exceptional circumstances, where no other remedy would suffice”.

Looking to the motion judge’s decision, the Court found that the judge did not adequately engage with the third part of the test. The judge determined that it was not reasonable to strike or stay the respondent’s motion to change. But the judge did not consider any other remedies available under Rule 1(8). On that basis, the Court chose to set aside the decision.

Court Provides Opportunity for Father to Remedy His Non-Compliance

The Court proceeded to consider the motion to strike. It was clear that the first part of the test was met, as the respondent had not complied with a court order. On the second stage of the test, the Court found that there were no exceptional circumstances present. He would still owe the money even if he were successful in his motion to change. The respondent claimed that his business had suffered a downturn as a result of the COVID-19 pandemic, but the Court explained that this did not excuse his failure to make the payment that he owed under the 2019 order.

The third part of the test required the Court to consider an appropriate remedy. In Purcaru v. Purcaru, the Ontario Court of Appeal explained that the “objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court”. Other cases have similarly emphasized that remedies should address any noncompliance and damage to the other party as fully and quickly as possible. Overall, the Court concluded that the respondent needed an opportunity to remedy his noncompliance before participating in the proceedings, particularly because the equalization payment had been owed since the parties separated in 2013. He was required to pay the arrears owing as a condition of continuing to participate in the proceedings and seeking relief with his motion to change.

NULaw: Providing Family Law Guidance on Support Arrears and Motions to Change in Toronto

Family court orders must be followed, and unpaid child support, spousal support, equalization payments, or other outstanding obligations can affect a party’s ability to seek relief from the court. If you are dealing with support arrears, enforcement of a family court order, or a motion to change child or spousal support in Toronto or elsewhere in the GTA, contact the team at NULaw to discuss your circumstances. We help you understand your rights, obligations, and options when addressing non-compliance with an existing support order. To schedule a confidential consultation, please reach out online or call 416-481-5604.