Kovachis v. Kovachis et al.,

• Jurisdiction: Ontario
• Judge: Laskin, Gillese and Pepall, JJ.A.
• Neutral Citation: 2013 ONCA 663
• Date: 24 May 2013
• Court: Court of Appeal (Ontario)

Kovachis v. Kovachis (2013), 311 O.A.C. 228 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. NO.005

Tommy Kovachis (applicant/appellant) v. Carole Bertrand Kovachis , Carlo D'Amato and Bill Lee (respondent/respondent in appeal)

(C56403; 2013 ONCA 663)

Indexed As: Kovachis v. Kovachis et al.

Ontario Court of Appeal

Laskin, Gillese and Pepall, JJ.A.

October 31, 2013.

Summary:

In response to the husband's motion to reduce child support and require the wife to pay her proportionate share of exceptional expenses, the wife sought spousal support and property. To succeed, she had to set aside both a marriage contract and a separation agreement. The wife alleged that the husband had failed to provide complete financial disclosure. Numerous disclosure orders were made. Dissatisfied with the husband's response, the wife moved for an order to strike the husband's pleadings. The motion was granted. The husband appealed.

The Ontario Court of Appeal allowed the appeal. The husband's pleadings were reinstated.

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - A husband's pleadings were struck due to a failure to comply with orders for financial disclosure - On the husband's appeal, the Ontario Court of Appeal stated, "Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance.... Disclosure orders must be fair to both parties and appropriate to the case." - See paragraphs 34 to 36.

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - [See Practice - Topic 2237 ].

Family Law - Topic 4129

Divorce - Practice - General - Loss of right to defend or to further participate in proceedings - [See Practice - Topic 2237 ].

Practice - Topic 6

General principles and definitions - Application of practice rules - [See Practice - Topic 2237 ].

Practice - Topic 2237

Pleadings - Striking out pleadings - Grounds - Failure to obey court order - In response to the husband's motion to reduce child support and require the wife to pay her proportionate share of exceptional expenses, the wife sought spousal support and property - To succeed, she had to set aside both a marriage contract and a separation agreement - The wife alleged that the husband had failed to provide complete financial disclosure - Numerous disclosure orders were made - Dissatisfied with the husband's response, the wife moved for an order to strike the husband's pleadings - The motion was granted - The Ontario Court of Appeal allowed the husband's appeal - While the motion judge appeared to accept the principle that a party's pleadings should only be struck in exceptional circumstances, he had not applied it fairly - Therefore, his decision did not attract the deference to which it was normally entitled - Striking the husband's pleadings was not warranted in light of (1) the substantial disclosure already made; (2) the motion judge's failure to itemize what disclosure had not been provided; (3) the absence of any evidence that the husband had wilfully disobeyed any of the orders; and (4) proportionality - Under rule 1.04(1.1) of the Rules of Civil Procedure, proportionality was a principle of all civil proceedings in Ontario - Consideration should have been given to the importance or materiality of the disclosure not produced - The court was not satisfied that any of the disclosure not provided was so important to the issues that his pleadings should have been struck - The husband's pleadings were reinstated.

Cases Noticed:

Purcaru v. Purcaru (2010), 265 O.A.C. 121; 2010 ONCA 92, refd to. [para. 24].

Chernyakhovsky v. Chernyakhovsky, [2005] O.T.C. Uned. 216; 137 A.C.W.S.(3d) 988 (Sup. Ct.), refd to. [para. 34].

Boyd v. Fields, [2007] W.D.F.L. 2449 (Ont. Sup. Ct.), refd to. [para. 34].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 1.04(1.1) [para. 34].

Counsel:

Gary S. Joseph and Elissa H. Gamus, counsel for the appellant;

Julie Stanchieri, counsel for the respondent, Carole Bertrand Kovachis.

This appeal was heard on May 24, 2013, by Laskin, Gillese and Pepall, JJ.A., of the Ontario Court of Appeal. On October 31, 2013, Laskin, J.A., delivered the following judgment for the court.