BC Family Law Striking Pleadings Lawyers explain what happens when a party to a family case refuses to make disclosure, fails to cooperate in the process and refuses to abide by family law rules.
The recent decision of Dennis v Gill, 2018 BCSC 1533 (“Dennis”), deals with unequal division of property and the striking of pleadings. Both of these issues are uncommon in family law cases, and the court itself described the proceedings as “unique” in its ruling. The uniqueness of Dennis stems from the specific facts of the case and some of the actions taken by both parties to the litigation. Karsten Erzinger, of our team BC Family Law Striking Pleadings Lawyers, explains the facts of life to parties who don’t obey family law rules.
BC Family Law Striking Pleadings Lawyers Call 1 877 602 9900
Our senior BC Family Law Striking Pleadings Lawyers operate out of 6 offices across BC and in Calgary. Our BC Family Law Striking Pleadings Lawyers note that the Respondent absenting himself from the trial had a negative result on his outcome in the litigation, which is worth noting; one ignores legal proceedings levied against them at their own peril.
In Dennis, the Respondent’s failure to attend served to give her more ammunition in her argument to strike the Respondent’s pleadings.
The Respondent did not appear for trial, and the court ruled that “the Respondent had deliberately absented himself” and therefore the trial could proceed. The court’s ruling on this was based on the Respondent’s historical conduct in the litigation:
[4] …The respondent has a history of not attending various court dates previously set in this matter, not filing required documents, and not complying with court orders. His lapses have increased as this matter progressed closer to trial.
[5] Having heard the evidence, I repeat that I am satisfied that:
- the respondent was well aware of the trial date;
- the respondent has deliberately absented himself from the trial;
- the respondent has engaged in deceit and in particular fraudulently relying on falsified reports from his general practitioner, Dr. McKeown, including a forged letter of May 15, 2018, which purported to indicate, inter alia, that the respondent suffered from “severe cluster migraine headaches”, was in a migraine cycle, and had reduced his cocaine use by 98 percent;
- the respondent had notice that his spousal support and other claims could be dismissed if he did not appear for trial;
- the respondent has selectively participated in proceedings only when it suits him; and
- the respondent has given false excuses about his health in the past to justify not responding to counsel and not attending court. At the very least, his claims of health problems are greatly exaggerated.
[6] Most recently, in June the respondent claimed to have migraine headaches yet was surveilled working during the day doing renovations at a home in New Westminster. He was also observed in the sunlight without his sunglasses having no apparent difficulty despite protestations around the same time of needing a dark room in order to attend mediation in this matter due to his migraine headaches.
[7] As will be discussed below, these behaviours have made the claimant’s prosecution of her claims more difficult.
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Karsten Erzinger articled student with our team of BC Family Law Striking Pleadings Lawyers Call 1 877 602 9900 explains the background of the relationship.
The court went through a detailed overview of the facts in Dennis, as they are important not only to the eventual ruling on the division of property, but they are also important for the Claimant’s request to strike the Respondent’s pleadings. The background of the relationship was set out in detail by the court in paragraphs 10-26 of the decision:
- The parties first met in the early 1990’s, began a relationship in 1993, starting living together in 1997, and separated in February, 2011;
- The parties reconciled and lived in a common law relationship from 2001 to 2014, which made them spouses;
- The parties had no children together;
- During the relationship, the Respondent occasionally used crack cocaine, marijuana, cigarettes, and alcohol, which “Negatively affected his employment and the parties’ relationship”;
- The Respondent spent time in three treatment centres over the years, two of those occurring during the relationship;
- Following separation, the Claimant left the family home and, despite not living there, was responsible for all the expenses associated with the family home;
- During the relationship, the Claimant purchased a condo in New Westminster with her own accumulated savings and a loan from her parents. This occurred in 2005, and the Respondent contributed nothing towards the purchase;
- A condition of the Claimant’s loan from her parents was that the condominium be placed solely in the Claimant’s name, which it was;
- During the relationship, the parties kept their finances separate, which included separate bank accounts;
- Before purchasing the New Westminster condo, the Claimant sought legal advice about whether obtaining a cohabitation agreement. The lawyer she spoke with advised her that because the parties kept separate financials, they did not need a cohabitation agreement, which was true at the time due to the Family Relations Act being the current legislation at the time;
- During the relationship, “the claimant paid for the majority of the parties’ living expenses. Since the separation, she has paid for practically all of the fixed expenses related to the New Westminster condominium despite no longer living on the premises. The claimant was an excellent record keeper and has provided detailed records and charts to verify her expenses.”
- After separation, the Respondent agreed to pay $300 a month in rent but only did so for four months, and stopped paying; and
- In 2011, the Claimant refinanced the New Westminster condo and purchased a condo in Kehei, Hawaii, on the island of Maui.
BC Family Law Striking Pleadings Lawyers Call 1 877 602 9900
Two important lessons regarding family law proceedings can be found in the facts of Dennis.
- First, the Claimant was prudent to see a lawyer prior to purchasing the New Westminster condominium to inquire about a cohabitation agreement. However, when the Family Law Act came into effect, it would have been wise for her to see a lawyer again for advice on the changes to the legislation. Had the Claimant sought out a lawyer to inquire about the changes in the Family Law Act, some of the Claimant’s post-separation issues that eventually led to the trial may have been averted.
- The second lesson that can be found in the facts of Dennis is the importance of record keeping. In the day and age where bank records are not kept indefinitely, and financial statements from bank accounts, credit cards, and other financial instruments can be emailed to you in a convenient PDF file, it is all the more important to take a bit of time to organize and keep records stored in a safe location. As shown in Dennis, should the time ever come where you need to prove a claim, structured and consistent record-keeping can save much time and hassle.
Striking of Pleadings Explained By Our BC Family Law Striking Pleadings Lawyers Call 1 877 602 9900
Our BC Family Law Striking Pleadings Lawyers explain that if you are involved in a family law dispute, one remedy that may be available to you is to strike the opposing side’s pleadings. Striking pleadings means that any claims the other side is making against you are struck, which is to say dismissed or eliminated from the proceedings. However, there is a high threshold to meet in order to be successful.
In Dennis, the court goes through in detail precisely when it is appropriate to strike pleadings:
[61] As I indicated in my earlier ruling, a trial judge has the discretion to strike the pleadings of a party where appropriate: R. 51(28)(b) and (c) of the Supreme Court Family Rules [Rules], regarding sanctions for failing to comply with a requirement under R. 5 or an order under R. 5 to provide particulars, or to file and serve a financial statement; R. 112 more generally, and R. 215 with respect to failing to comply with the Rules, including disclosure requirements; see also ss. 222 and 223 of the FLA.
[62] These provisions have been discussed in several cases, including Street v. Street, 2017 BCSC 981 (CanLII); D’Atri v. Gonzalez, 2017 BCSC 1244 (CanLII); Anderson v. Anderson, 2011 BCSC 1465 (CanLII); and Halliday v. Halliday, 2015 BCCA 82 (CanLII).
[63] In Schwarzinger v. Bramwell, 2011 BCSC 304 (CanLII), the Court summarized some of the principles for striking out a response to a civil claim as follows at paras. 105-140:
(a) The overarching principle requires that the Court consider whether, in all the circumstances, justice requires that the defence be struck;
(b) Draconian measure: it will only be in extreme cases that a party’s pleadings will be struck;
(c) Second chance: generally the parties are entitled to a “second chance” before such relief is granted;
(d) Proportionality: whether striking a party’s claim is disproportionate in all the circumstances;
(e) Alternate remedy: whether a lesser remedy would suffice to address the party’s noncompliance; and
(f) Explanation for default: a party’s explanation for noncompliance ought to be considered.
[64] These principles have been applied in the family law context: Anderson at paras. 62–64.
[65] In my earlier ruling, I indicated that I am aware that the striking of pleadings is an exceptional and severe remedy. It is to be avoided in most cases.The need for such a drastic remedy will only rarely arise. I have considered whether a lesser remedy would suffice here. In particular, I mooted with claimant’s counsel whether an adjournment of the respondent’s counterclaim would be appropriate. The problem with such a remedy is that the respondent has shown no inclination in the past to prosecute his counterclaim for spousal support and is equally unlikely, in my view, to do so in the future based on his manner of proceeding to date.
[66] I have also considered whether I could order a nominal amount for spousal support. The problem with such an order is that there is no reliable evidence before me on the respondent’s side of the equation that would allow me to engage in the analysis required by ss. 160 to 162 of the FLA.
[67] As I have noted, the respondent has repeatedly failed to file the proper documents in support of his counterclaims. His nondisclosure is a major impediment to addressing the issues between the parties. The respondent has also repeatedly failed to abide by court orders in respect of this matter to facilitate the litigation of the spousal support issue. He has chosen not to participate in the trial.
[68] Despite being provided with considerable flexibility and accommodation in advancing his spousal support claim, he has completely failed to properly support the claim four years after separation and has deliberately absented himself from these proceedings. As Fitzpatrick J. stated in Schwarzinger, there comes a time when the Court must say “enough”: para. 144. That time has come.
[69] In all the circumstances, I find it appropriate to order that the respondent’s claim for spousal support be struck.
BC Family Law Striking Pleadings Lawyers Call 1 877 602 9900
As stated by the court in Dennis, the striking of pleadings is a very rare order that is seldom granted. Due to the unique facts of Dennis, the Claimant was successfully able to argue for the Respondent’s counterclaim to be struck. However, the court challenged the Claimant’s lawyer about the Respondent’s counterclaim and considered what the Respondent was asking for in his pleadings.
Takeaway –BC Family Law Striking Pleadings Lawyers Call 1 877 602 9900
Ultimately, Our BC Family Law Striking Pleadings Lawyers note that the Respondent absenting himself from the trial had a negative result on his outcome in the litigation, which is worth noting; one ignores legal proceedings levied against them at their own peril. In Dennis, the Respondent’s abstention served to give her more ammunition in her argument to strike the Respondent’s pleadings., the take away is that one should carefully consider all the facts and circumstances before looking to strike their opponent’s pleadings. In family law cases, facts are important, and they will often dictate what remedies and options you have in litigation. If you are dealing with a difficult litigant who is pursuing a frivolous claim while conducting himself in a purposefully difficult and obstructionist way, filing an application to strike his or her pleadings is an option that may be available to you.
Call our BC Family Law Striking Pleadings Lawyers today to see if you have grounds to hold the opposing party accountable for their actions. Call 1 877 602 9900
