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  #11 (permalink)  
Old 02-27-2017, 05:55 PM
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Judges rarely strike pleadings for stuff like this. Especially if the matter involves children. Not even WD has been successful on asking for pleadings to be struck. The Rules are fine and all but, they are rarely implemented. WD has dealt with bad faith and all sorts of stuff but, they rarely strike pleadings in custody and access matters.
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Old 02-27-2017, 06:10 PM
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Fair enough, but it forces them to get back to the table.

I think they'd rather just provide the disclosure required instead of dealing with a needless motion. Especially if they have to pay their lawyer.
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Old 02-27-2017, 08:48 PM
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Quote:
Originally Posted by Kinso View Post
Fair enough, but it forces them to get back to the table.
Starting a motion that you are guaranteed to lose doesn't get anybody back to any table. All it does is saddle you with costs when you lose the motion.

Quote:
I think they'd rather just provide the disclosure required instead of dealing with a needless motion. Especially if they have to pay their lawyer.
They don't have to pay their own lawyer, because after they win they will get a good chunk of their money back.

Striking pleadings in family law is seen as even more draconian a measure than a finding of a contempt of court. When somebody is found in contempt in family law, they are almost always given an opportunity to purge the contempt, or they are hit in costs, or some other financial hit... but their case continues. Striking pleadings is an absolute nuclear bomb in the family law world.

...and to motion for this nuclear bomb because somebody didn't do their financial disclosure before the settle conference? That is incredibly disproportionate.
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Old 02-27-2017, 09:44 PM
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Starting a motion doesn't compel you to finish it.

A rule 18 offer to settle can insulate you from costs.

Striking pleadings it's not quite a nuclear bomb.

They will have to explain to the court why they haven't complied with a court order; which is never easy.
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Old 02-28-2017, 10:25 AM
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Quote:
Originally Posted by Kinso View Post
Starting a motion doesn't compel you to finish it.
LOL. Yes it does. The Rules require anyone who withdraws to pay the costs of the other party.

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Originally Posted by Kinso View Post
A rule 18 offer to settle can insulate you from costs.
Only if the other party agrees to cover their costs as part of the agreement. If they don't and an agreement is met they can go to court to get costs ordered. Happens all the time.

Quote:
Originally Posted by Kinso View Post
Striking pleadings it's not quite a nuclear bomb.
Actually, yes it is. Janus is 100% correct. You are taking away the litigant's ability to represent themselves in a lawsuit. There are laws that allow for this. Fundamental laws that allow you to defend yourself in a lawsuit. When a judge makes an order for striking they have to take away your basic civil rights. They need GOOD REASON to do this.

Same things go for ex-parte motions. Judges don't take risks with people's civil liberties. That is why every ex-parte has an urgent return to give the absent party a chance to respond. Usually, they return the same week or the next week.

Quote:
Originally Posted by Kinso View Post
They will have to explain to the court why they haven't complied with a court order; which is never easy.
The better path is to serve a Form 20 with the income disclosure. Then to present the serving of the form and ask for the income disclosure to be ordered at the conference. It is a procedural thing so a judge can order the income disclosure.

The repeated failure to disclose information will eventually catch up with the other party. It usually ends in an income determination in the absence of the financials being presented. Rarely, if ever, a striking of pleadings.

Good Luck!
Tayken
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Old 02-28-2017, 10:45 AM
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Originally Posted by Janus View Post
Striking pleadings in family law is seen as even more draconian a measure than a finding of a contempt of court.
100% agree. Judges rarely remove litigants civil rights. Striking comes with a VERY SERIOUS consideration of the rules. It is not something to be done lightly. That is why lawyers laugh when someone suggests they are going to strike pleadings.

Case on point:

striking pleadings | FamilyLLB - Ontario Divorce & Family Law Blog

You have to do a LOT to get pleadings struck.

Also: Grenier v. Grenier ? When a court will strike pleadings

Quote:
Nevertheless, striking pleadings is an extreme remedy (NUCLEAR BOMB) that has a particularly detrimental effect upon the non-compliant party, and the court’s discretion to do should be exercised with caution. Justice Rogers lists 12 factors the court must weigh to determine whether the non-disclosure constitutes a breach severe enough to warrant the striking of pleadings:

1. What was the overall effort to complete disclosure relative to the undisclosed items, and what ratio does the completed disclosure bear to the undisclosed items?

2. Are the missing pieces of disclosure relevant to significant issues in the file or are they about issues that were or have become minor? Does the mover need this disclosure to proceed and would a court be hampered in adjudicating without it?

3. Was there and is there a realistic possibility of obtaining this disclosure?

4. What is the cost of the disclosure relative to the overall quantum of money at risk?

5. Is the disclosure available to the seeker?

6. Given the advances in the information in the case, has the request for missing disclosure become overreaching?

7. Were the orders (or order) concerning the disclosure sufficiently clear that the party ordered to provide the information would understand what was being sought?

8. Were the time-frames for obtaining the disclosure reasonable?

9. Did the seeker of the disclosure continue to pursue the disclosure and enforce the order(s)?

10. Were the disclosure orders (or order) so onerous that a party could not reasonably locate and disclose the volume of material requested?

11. Is there a lesser remedy that would suffice? Would it be reasonable to provide that information not disclosed could not be used at trial?

12. Has the seeker of disclosure discharged the onus of the burden of proof in the motion?
BTW, in that last example I provided:

Quote:
A nine year history of non-compliance requires a remedy equally as shocking.
It took nine years to get to this remedy...

Striking Pleadings - An Exceptional Remedy - Mills & Mills LLP

From the Appeal court!

Quote:
The Court of Appeal allowed the husband’s appeal, ruling that “in family law cases, pleadings should only be struck, and trial participation denied, in exceptional circumstances and where no other remedy would suffice.”

...

“given the exceptional nature (NUCLEAR BOMB) and significant implications of denying a party participation at trial, it is essential that this remedy of last resort be granted only on a proper evidentiary basis.”

...

Chiaramonte is instructive for family law litigants. While it may be tempting to view any defect in the opposing party’s disclosure as grounds for a motion to strike, litigants should heed the Court of Appeal’s warning that striking pleadings is an exceptional remedy that will not be applied lightly.
Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII)

Date: 2013-10-23
Docket: C55971
Other citations: 370 DLR (4th) 328; 36 RFL (7th) 11; [2013] CarswellOnt 14325; 235 ACWS (3d) 439
Citation: Chiaramonte v. Chiaramonte, 2013 ONCA 641 (CanLII), http://canlii.ca/t/g1kxl

Reminder to posters: If you don't know what you are talking about it is often better to not provide advice.

As well, always consult a LAWYER before seeking any "extreme remedy" before the court.

Good Luck!
Tayken
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  #17 (permalink)  
Old 02-28-2017, 03:01 PM
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Quote:
Yes it does. The Rules require anyone who [starts a motion and] withdraws to pay the costs of the other party.
Earlier you stated 'the Rules are fine and all, but rarely, they are implemented'.

Tayken, which one is it, do the Rules prevail without modification; or are they flexible and implemented inconsistently? You can't hold both positions.

Where I would stand is that the rules are implemented inconsistently depending on the court and presiding Judge. Some will be stricter than others. But I stand by my recommendation to OP.

It's true, motions (like Applications) are subject to cost consequences in accordance with a strict reading of the rules (R.14(18)/R.12(3)).

However, in practice motions are withdrawn or settled all the time without cost consequences. This is often because the other party does not want to argue a motion just to fight about costs, or because the motion has validity. It's the same reason matters often settle without costs payable to either side since conducting a trial just to get a costs award is seldom cost-efficient/effective.

Secondly, even if a judge is unwilling to strike pleadings despite there being a breach of a court order, it is unlikely they'd order costs against OP for bringing the motion. The other party is in active violation of an existing order. Granted all judges have a degree of unpredictability - so anything is possible - and that risk needs to be factored into your analysis.

It is possible the Judge will grant additional time for the party and breach to provide disclosure, but hardly that they'd punish OP for a necessary motion.

Third, a lawyer never wants to appear in court and defend breach of a court order without good cause. It's makes them appear as if they cannot control their client and there's a good chance the judge is going to yell at them. When the party is being difficult (and assuming it's not the lawyer), a motion can give the lawyer the ammo they need to compel compliance from the client.

Quote:
Only if the other party agrees to cover their costs
Incorrect. If you beat your offer to settle, you are presumptively entitled to your costs (R.18(14)/R.24(5)(c)). State in your OtS that if disclosure is provided by the date of the motion, the motion will be withdrawn without costs and on consent. Since the existing order already compels this disclosure, you cannot by definition lose - since you're asking for what has already been ordered.

Quote:
Striking Pleadings / Nuclear Bomb
I don't really want to debate this as 'nuclear bomb' is a subjective term anyways. Struck pleadings can be reinstated, the denial of civil rights can be cured.

I would put jail in contempt proceedings as the 'nuclear bomb' option - but again... subjective.

Quote:
Use a Form 20
Form 20s ONLY apply in Child Protection Cases. If you serve a Form 20 outside of CPC, you look like you don't know the rules. The form itself says they only apply in Child Protection Proceedings (R.20(3)).

Sadly, many lawyers make the same mistake, but the frequency of the error does not make it correct. A Form 20 has no more power than a blank piece of paper, or a paper napkin (except in Child Protection cases).

For a case that confirms Form 20 only have authority in Child Protection Proceedings, see Robertson v. Quinn (CanLII - 2012 ONSC 5252 (CanLII)) - at paragraph 5.

Tayken, I made the same point to you earlier in your Form 20 post in the Reference subform. You opted to ignore it then. I hope you do not this time.

Striking Pleadings

It is true that the court will rarely actually strike pleadings. I still think it's a good motion for OP to bring for the reasons outlined above.

We also know the court applies the rules inconsistently on this issue, and so there is a chance the pleadings will be struck (even if a low change).

The analysis posted is in Grenier v. Grenier is useful.

Is the motion a good idea?

That depends on OP's risk tolerance relative to the value of the outstanding disclosure. Proceeding to trial without the disclosure is a bad idea if there is any substantial value to it.

Then again, asking for an adverse finding is another option that may be more palatable.

There is no 'one size fits all' approach in litigation. All factors must be considered with both what we know, and don't know, on this forum.

Quote:
Reminder to posters: If you don't know what you're talking about, it's often better not to provide advice
True. There is also a lot of bad information on these forms (see Tayken's Form 20 post for example).

Part of the problem with sites like this is we only get a small snippet of information from OP. A proper analysis requires a lot more than we can get on here. People's narratives also tend to be biased and partial - even with the benefit of an anonymous internet - they see life from their own lens. Lawyers can be far more objective, which is more important in family law than most subsets of litigation. If OP (or anyone else) wants a full and proper analysis of their situation, it is best to consult with a lawyer. This forum is useful, but flawed.

The other problem is I was posting from my phone and giving a few sentences at best - and not explaining the reasoning for my suggestion to bring a motion to strike pleadings.

Litigation is as much about strategy as it is about being 'correct about the law'. My advice is strategy based - but that depends on OP's risk tolerance.
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  #18 (permalink)  
Old 02-28-2017, 04:30 PM
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Quote:
Originally Posted by Kinso View Post
Earlier you stated 'the Rules are fine and all, but rarely, they are implemented'.
In particular the rules regarding striking. See my complete obliteration of your points above.

Quote:
Originally Posted by Kinso View Post
Tayken, which one is it, do the Rules prevail without modification; or are they flexible and implemented inconsistently? You can't hold both positions.
As I stated above, they are flexible to the IMPACT they have on one's civil liberties. FOr example, striking is taken with extreme caution. I was clear on that. Each rule has a set of judicial considerations deeply rooted in this thing we call jurisprudence. Maybe you heard of it?

Quote:
Originally Posted by Kinso View Post
Where I would stand is that the rules are implemented inconsistently depending on the court and presiding Judge. Some will be stricter than others. But I stand by my recommendation to OP.
Is your recommendation to seek the striking for the record for the failure to disclose financials prior to a settlement conference? I would follow the advice of the lawyers who wrote the blog posts I cited and not your advice ever.

After the failure to disclose numerous times over numerous years then striking the record becomes relevant. Because the conduct of the litigant has become extreme. See the Appeal court decision I cited.

Quote:
Originally Posted by Kinso View Post
However, in practice motions are withdrawn or settled all the time without cost consequences.
Because the parties either (a) agreed that they would bear their own costs or (b) one (or both) of the parties failed to pursue them. They don't magically disappear.

[QUOTE=Kinso;218257]This is often because the other party does not want to argue a motion just to fight about costs, or because the motion has validity.[/quotes]

Or the costs are not worth the effort. But, if you search the recent 2017 stuff (ontario) you will see there are a lot of costs awards posted that resulted from settlement on all issues where the determination of costs could not be resolved between the parties.

Quote:
Originally Posted by Kinso View Post
It's the same reason matters often settle without costs payable to either side since conducting a trial just to get a costs award is seldom cost-efficient/effective.
Do you understand how costs are evaluated? They are not a "trial" or a motion. They are a request to the court. Read up on what you are talking about before spouting off nonsense like this.

Quote:
Originally Posted by Kinso View Post
Secondly, even if a judge is unwilling to strike pleadings despite there being a breach of a court order, it is unlikely they'd order costs against OP for bringing the motion.
What happens when the other party drops the disclosure 1 hour prior to the hearing of the motion? Happens all the time. Shouldn't that party seek their costs up to that point? Really, think about it.

Quote:
Originally Posted by Kinso View Post
The other party is in active violation of an existing order. Granted all judges have a degree of unpredictability - so anything is possible - and that risk needs to be factored into your analysis.
Again, to get something struck on the first occurrence is a wasteful motion attempt and only serves to create conflict. It has no other purpose.

Quote:
Originally Posted by Kinso View Post
It is possible the Judge will grant additional time for the party and breach to provide disclosure, but hardly that they'd punish OP for a necessary motion.
It isn't a NECESSARY MOTION! You can get this ordered at a conference. It is a procedural element and can be ordered at a conference. No need to bring any motion!

Quote:
Originally Posted by Kinso View Post
Third, a lawyer never wants to appear in court and defend breach of a court order without good cause.
Lawyers do all sorts of things for their bad clients. Judges are always puzzled why their clients won't produce disclosure. Sit in on some conferences and you will see this is the #1 ordered thing at conferences. Motions for disclosure are a waste of court resources as they can be addressed at any conference and ordered.

So, it is a complete waste of time to bring a motion.

Quote:
Originally Posted by Kinso View Post
It's makes them appear as if they cannot control their client and there's a good chance the judge is going to yell at them. When the party is being difficult (and assuming it's not the lawyer), a motion can give the lawyer the ammo they need to compel compliance from the client.
Again, the tool to use to get financial disclosure is a conference not a motion.

Quote:
Originally Posted by Kinso View Post
Incorrect. If you beat your offer to settle, you are presumptively entitled to your costs (R.18(14)/R.24(5)(c)).
Again, a matter for conferences and the costs usually are reserved to trial or another point in time.

Quote:
Originally Posted by Kinso View Post
State in your OtS that if disclosure is provided by the date of the motion, the motion will be withdrawn without costs and on consent. Since the existing order already compels this disclosure, you cannot by definition lose - since you're asking for what has already been ordered.
You can "lose" by creating unnecessary conflict. You can anger a justice by wasting court services by not dealing with the matter at a conference. (That is their purpose.)

If you want to litigate every detail go for it. You will be in court for years and spending piles of cash.

Quote:
Originally Posted by Kinso View Post
I don't really want to debate this as 'nuclear bomb' is a subjective term anyways. Struck pleadings can be reinstated, the denial of civil rights can be cured.
You have yet to address directly any of the direct citings from case law I have provided that are completely opposite to your position. I take your failure to do so as an acknowledgement you are wrong in your position.

Quote:
Originally Posted by Kinso View Post
I would put jail in contempt proceedings as the 'nuclear bomb' option - but again... subjective.
Contempt is a nuclear bomb as well. I never recommend it for anything but the most extreme situations.

Quote:
Originally Posted by Kinso View Post
Form 20s ONLY apply in Child Protection Cases.
You are incorrect. If you have access you can read the article I based that information on:

https://www.lexisnexis.com/ca/guidan...or_Information

Quote:
This practice note describes the use of Form 20: Requests for Information when making disclosure requests as a way of ensuring that requests for disclosure are properly framed to compel production or carry costs consequences for non-compliance — Founding Author: Justice Victoria Starr, Ontario Court of Justice (formerly of Starr Family Law). Updating Author: Elizabeth Virtue, LexisNexis Canada Inc.
You really are not very wise... It is a practice note from the Law Society that is not easily accessable to the general public. I was given a copy by a nice lawyer so I could provide information to the unrepresented.

Quote:
Originally Posted by Kinso View Post
If you serve a Form 20 outside of CPC, you look like you don't know the rules. The form itself says they only apply in Child Protection Proceedings (R.20(3)).
Very incorrect. If you read the root article, it actually dispells that myth and was an educational piece for lawyers who don't understand the rules. The majority of general practice lawyers don't Understand Rule 20 and the subsequent Form 20. Feel free to read the actual article.

Quote:
Originally Posted by Kinso View Post
Sadly, many lawyers make the same mistake, but the frequency of the error does not make it correct. A Form 20 has no more power than a blank piece of paper, or a paper napkin (except in Child Protection cases).
Incorrect. I know a pile of lawyers that do this and see it all the time on files I help with and used rather successfully. Hence the above practice note and my article. You are making yourself look like an idiot.

Quote:
Originally Posted by Kinso View Post
For a case that confirms Form 20 only have authority in Child Protection Proceedings, see Robertson v. Quinn (CanLII - 2012 ONSC 5252 (CanLII)) - at paragraph 5.
I see your case and raise you the above-mentioned practice note and:

CanLII - 2010 ONSC 1523 (CanLII)

Quote:
[12] The Respondent’s Form 20: Request for Information is dated February 12, 2010. Mr. McKerrow has 30 days from the date of service of the Form to provide the requested disclosure. Even were that Form served on February 12th, the 30 days has not yet expired. As a result, I cannot make either of the orders requested by the Respondent at this time.

[13] What I can do, is to make an order for production of the disclosure within the Form 20, Request for Information, which I believe was the expectation of the parties at the Trial Management Conference. The Applicant has indicated that he agrees to produce the requested disclosure but for the joint credit card with his mother which he states does not exist.
If you want I can cite more case law but, that is too easy to do.

Quote:
Originally Posted by Kinso View Post
Tayken, I made the same point to you earlier in your Form 20 post in the Reference subform. You opted to ignore it then. I hope you do not this time.
I also addressed all of your nonsense in the thread here on 02-01-2016, 09:31 AM:

http://www.ottawadivorce.com/forum/f...tml#post204431

You are wasting everyone's time...

Good Luck!
Tayken
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  #19 (permalink)  
Old 02-28-2017, 05:32 PM
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Originally Posted by Kinso View Post
Proceeding to trial without the disclosure is a bad idea if there is any substantial value to it.
My reading of the case law is that people who go to trial without having completed disclosure get wrecked.

Angel: Devil here didn't do his financial disclosure

Devil: Sure, I only make $40,000 a year, no point

Angel: But he bought a nice meal at a restaurant last week. I heard he even ordered dessert.

Judge: Good point. I'll impute income of $200,000 to the Devil. CS and SS are set at something that he cannot possibly hope to afford if he really makes $40,000. I also fix costs at $55,000, and direct that these costs be enforced as support.

Devil: But I only make $40,000!

Judge: Should have completed your disclosure, sucker


....which is why I think that if your opponent is not completing disclosure, then the best way to proceed is to go to trial.

Kinso, do you have any case law (or personal experience) where some shady individual didn't bother doing financial disclosure, their opponents completed full disclosure, and the shady person actually won? I'm legitimately curious.
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Old 03-01-2017, 01:35 PM
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Again thank you to everyone who has taken the time to help me and others on this forum. Most peoples knowledge or experiences here help others decide how they wish to proceed with their own individual circumstances .

I certainly do not want people to argue over something that I started .

I now realize that my individual case may never get settled unless both sides want to get it done . That is a shame .

I will just have to wait until the next CC to see if the courts suggest any form of resolution . What a system indeed .
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