Chiaramonte v. Chiaramonte et al., (2013) 311 O.A.C. 113 (CA)

• Judge: Rosenberg, Tulloch and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 21, 2013
• Jurisdiction: Ontario
• Citations: (2013), 311 O.A.C. 113 (CA);2013 ONCA 641

Chiaramonte v. Chiaramonte (2013), 311 O.A.C. 113 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. OC.026

Anna Chiaramonte (applicant/respondent) v. Rosario Anthony Chiaramonte, R.A. Chiaramonte Dentistry Professional Corporation, 1298443 Ontario Ltd., Moutchiara Investments Ltd., Trident Services LLC, Chiaro Company LLC, Legends H.H. 1 LLC and Titan Services Ltd. (respondents/appellants)

(C55971; 2013 ONCA 641)

Indexed As: Chiaramonte v. Chiaramonte et al.

Ontario Court of Appeal

Rosenberg, Tulloch and Lauwers, JJ.A.

October 23, 2013.

Summary:

The parties were engaged in an acrimonious marital dispute. Orders had been made containing terms related to the husband's financial disclosure. A motion judge found that the husband had provided "token" disclosure only and that he was in wilful breach of at least three previous orders. The motion judge struck the husband's pleadings under the Family Law Rules and ordered that the matter proceed by way of an uncontested trial. She ordered costs in favour of the wife on a full indemnity basis. The husband appealed from the order striking his pleadings and asked the court to set aside the costs order.

The Ontario Court of Appeal allowed the husband's appeal and set aside the costs order.

Family Law - Topic 947

Husband and wife - Marital property - Distribution orders - Practice - Financial disclosure (incl. assets and their value) - [See Family Law - Topic 4129 ].

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - [See Family Law - Topic 4129 ].

Family Law - Topic 4129

Divorce - Practice - General - Loss of right to defend or to further participate in proceedings - The parties were engaged in an acrimonious marital dispute - Orders had been made containing terms related to the husband's financial disclosure - A motion judge found that the husband had provided "token" disclosure only and that he was in wilful breach of at least three previous orders - The motion judge struck the husband's pleadings under the Family Law Rules and ordered that the matter proceed by way of an uncontested trial - The Ontario Court of Appeal allowed the husband's appeal - Striking a party's pleadings was a drastic remedy that was only to be applied in exceptional circumstances - The rules authorizing the remedy had to be interpreted in light of the draconian effect of rule 10(5)(b), under which a respondent whose answer was struck was not entitled to participate in the case in any way - A motion judge's decision to strike pleadings and deny participation at trial was entitled to deference where it was exercised on proper principles - Here, the motion judge's fact finding was erroneous - It was not clear from her reasons that she had considered the affidavit evidence tendered by the husband - While the husband's disclosure had not been perfect, the motion judge committed palpable and overriding errors in finding that he had wilfully breached the existing orders - Justice would best be served by allowing the husband to participate in the trial - See paragraphs 28 to 39.

Practice - Topic 2237

Pleadings - Striking out pleadings - Grounds - Failure to obey court order - [See Family Law - Topic 4129 ].

Practice - Topic 8298

Costs - Appeals - Appeals from order granting or denying costs - Requirement of leave to appeal - The parties were engaged in an acrimonious marital dispute - Orders had been made containing terms related to the husband's financial disclosure - A motion judge found that the husband had provided "token" disclosure only and that he was in wilful breach of at least three previous orders - The motion judge struck the husband's pleadings under the Family Law Rules and ordered that the matter proceed by way of an uncontested trial - She ordered costs in favour of the wife on a full indemnity basis - The husband appealed from the order striking his pleadings and asked the court to set aside the costs order - The wife asserted that the court could not consider the costs order without leave to appeal - The Ontario Court of Appeal allowed the husband's appeal and set aside the costs order - The general principle was that, when an appeal was allowed, the order for costs below was set aside and the costs below and the appeal costs were awarded to the successful appellant - Leave to appeal was not required if the substantive disposition was different from that of the decision under appeal - See paragraphs 40 to 42.

Practice - Topic 8326

Costs - Appeals - Costs of appeal - General principles - [See Practice - Topic 8298 ].

Cases Noticed:

Dickie v. Dickie, [2007] 1 S.C.R. 346; 357 N.R. 196; 221 O.A.C. 394; 2007 SCC 8, refd to. [para. 28].

Purcaru v. Purcaru (2010), 265 O.A.C. 121; 2010 ONCA 92, refd to. [para. 31].

Kim v. Kim, [2001] O.T.C. Uned. 167; 2001 CarswellOnt 502 (Sup. Ct.), refd to. [para. 32].

Costabile v. Costabile, [2004] O.T.C. 1029; 2004 CarswellOnt 4860 (Sup. Ct.), refd to. [para. 32].

St. Jean v. Cheung et al., [2009] O.A.C. Uned. 4; 2009 ONCA 9, refd to. [para. 41].

Hunt v. TD Securities Inc. et al. (2003), 175 O.A.C. 19; 43 C.P.C.(5th) 211 (C.A.), refd to. [para. 41].

Dines v. Helliwell (Harvey A.) Investments Ltd., [1992] O.J. No. 2107 (C.A.), refd to. [para. 41].

Statutes Noticed:

Family Law Rules (Ont.), rule 10(5) [para. 30].

Counsel:

Gary Joseph and Kristy Maurina, for the appellants;

Lorne Wolfson and Adam Black, for the respondent.

This appeal was heard on March 21, 2013, by Rosenberg, Tulloch and Lauwers, JJ.A., of the Ontario Court of Appeal. On October 23, 2013, Tulloch, J.A., delivered the following judgment for the court.