Striking the balance on striking a party’s pleadings for non-disclosure

• by Samantha Rich

Originally published in the OFLM 2023-6 edition


In Nayaik v. Nayaik (2023 ONSC 2645) the mother brought a motion to strike a father’s pleadings in the face of significant non-disclosure. Justice Jarvis noted that the courts do not look favourably upon deferred disclosure, delayed disclosure, and non-disclosure. However, Jarvis J. also inferred that judges can similarly get frustrated when parties do not clearly show the court what disclosure is in fact outstanding. Although the mother obtained a cost award for the motion, she was not successful in striking the father’s pleadings.



In Nayaik, the respondent mother brought a motion to strike the pleadings of the applicant father for alleged non-compliance with six court orders for financial disclosure and for leave to proceed with an uncontested trial.

Justice Jarvis held that he could not strike the father’s pleadings, given the totality of the disclosure provided to date. However, since the disclosure was late and unsatisfactory, the court could provide further directions for the trial and leave it to the trial judge to determine the extent of the father’s participatory rights (para. 33).  


Unreasonable litigation behavior

Justice Jarvis noted that the father's behaviour in not following the court orders regarding providing financial disclosure was "unreasonable litigation behaviour".

Nayaik reminds us of the important lesson that in order to prevent the court noting unfavorable behaviour which could very well negatively impact our client’s matter, it is imperative that family law litigants abide by the Family Law Rules and orders from the court regarding requiring financial disclosure.




Clarity and certainty with respect to disclosure request

Interestingly, the court appeared frustrated in coming to its ultimate conclusion of non-disclosure.  Justice Jarvis indicated that neither the mother’s evidence nor the Disclosure List informed the court when the balance of the disclosure was provided or whether and when the mother would have been satisfied with the father’s answers or explanations.

The court’s frustration was palpable at paragraph 12 of the decision:

This court has had to wade through the plethora of endorsements, Orders and (where appropriate) affidavits to piece together the disclosure (or, as it were non-disclosure) path and must infer that the father did comply with the preponderance of the disclosure ordered or that the wife accepted or chose not to further pursue disclosure of information involving those not listed above as outstanding.

And thus, yet another lesson emerges for counsel: when providing the court evidence of the other party’s disclosure deficiencies, clearly indicate the basis of your requests and specifically which documents or information is still outstanding and on what basis. 

If you are not clear, you will likely frustrate the court, at best. And at worst, your motion may be dismissed with costs.


Striking of pleadings

Justice Jarvis also noted that, “striking a party's pleading does not, ipso facto, relieve the party obtaining that relief from having to affirmatively prove their case at trial” (para. 25).

The court needs enough disclosure in order to make a decision which does not give rise to factual errors resulting in an unjust award of support.  As noted in the Court of Appeal decision of Kovachis v. Kovachis, pleadings should only be struck in exceptional circumstances because without one party’s participation in the trial, there is a risk that the court will not have sufficient or accurate information to make a just result (2013 ONCA 663, at paras. 24-25).

The court in Spettigue v Varcoe, affirmed that striking a party’s pleadings, is a "drastic remedy of last resort" and should be “restricted to particularly egregious cases of deliberate, persistent non-compliance, total disregard for the court process, and failure on the part of the offending party to either comply or adequately explain non-compliance.” (2011 ONSC 6618, at para. 31)

The Court of Appeal noted in Purcaru v. Purcaru, that the exceptional nature of remedy of striking a party’s pleadings stems from the adversarial nature of the legal system:

“The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, 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.” (2010 ONCA 92, para. 49)


Importance or materiality of disclosure

A list of missing disclosure is also not enough. Rather, an applicant should also provide evidence to the court of the importance or materiality of the disclosure they are seeking to be produced. In Kovachis, the Court of Appeal noted that before pleadings are struck due to financial non-disclosure the court must consider the importance or materiality of the disclosure not produced (Kovachis, para. 34).

Additionally, in Mullin v. Sherlock, the Ontario Court of Appeal noted that the court is obliged to “contextualize the relevancy and impact of the non-disclosure, the complexity of the issues in dispute, the extensiveness of the disclosure produced and the seriousness of the defaulting party's efforts and explanations for the inadequate or non-disclosure” (para. 28).

The court in Mullin at paragraphs 41-42 also added the following context from the perspective of the court:

“Judges presiding over family law disputes are frequently faced with mounds of material, a busy court docket and pressure to process files expeditiously. Repeated and frequent motions for disclosure are often necessary, though they should not be. As stated by Benotto J.A. in Roberts, at para. 12, delinquencies add significant expense to proceedings and consume substantial judicial time and resources. Counsel and their clients should not expect that repeated adjournments and indulgences will be given to instances of non-disclosure. Furthermore, an effective remedy for inadequate or non-disclosure should be available.

At the same time, a litigation strategy that involves repetitive motions for disclosure untethered from the disclosure already made may give a false impression of the extent of the non-disclosure. It must be recognized that given the size and complexity of some estates, it may be easier to ask the question than to give the answer.” (emphasis added)

The court in Spettigue v Varcoe at paragraph 15 emphasizes the positive duty to provide financial disclosure and that this duty flows from numerous sources:

…there is a general duty in all cases to disclose information that is relevant and material to the case, subject to any claims respecting privilege or other exclusionary rules of evidence… (emphasis added)

In Nayaik, Justice Jarvis found that the non-disclosure was particularly egregious because not only did the father not object to producing the disclosure three and a half years prior but also because the probative value of the disclosure risks his support paying ability not being fairly assessed by the court.


Culture shift

Justice Jarvis referred to the Supreme Court of Canada case of Hryniak v. Mauldin (2014 SCC 7) and agreed that there needs to be a culture shift in cases involving deferred disclosure, delayed disclosure, and non-disclosure. He noted that, “What the court permits, it promotes” (para. 32).

The court’s displeasure regarding failure to comply with the Family Law Rules and previous court orders regarding disclosure was abundantly clear:

“No family law litigant should have to tolerate the kind of litigation behaviour demonstrated by the father in this case”.

As pointed out by the court in Levely v. Levely:

Family Court proceedings are intended to be a means by which aggrieved parties can have their disputes arising after separation adjudicated upon by the court in a just, efficient and timely manner. Unfortunately, they all too often become a destructive tool which one party wields and manipulates in order to create further financial and emotional hardship for the other party. The frequency with which Family Law litigation degenerates into an abusive game of delay tactics, stonewalling, and dodging of judicial authority is a concern which must remain at the forefront of the judge's mind in considering remedies for a party's failure to participate as required in court proceedings or to comply with court orders. Family Law litigants who come to the court for assistance must come with a strong sense of assurance that the process will be an effective means of mending and stabilizing the family fabric, rather than a futile money pit of failed justice. The court has a critical responsibility and role to play in ensuring that proceedings which are intended to protect families and lead to resolution of pressing and emotionally divisive issues are not hijacked by a party and transformed into a process for further victimizing the other party and the children in their care. (2013 ONSC 1026 at para. 12) (emphasis added)

The court ultimately held that the mother is entitled to costs and considered:

  • the delay in the case (which was almost entirely attributable to the father);
  • the expense to which the mother has been unfairly and unreasonably put; and
  • expressing the court’s displeasure with the father’s litigation conduct.


Not surprisingly, the court awarded the father to pay the mother her costs in the amount of $15,000.

Nayaik is an important reminder to produce disclosure and to ask for it clearly.