Purcaru v. Purcaru,

• Jurisdiction: Ontario
• Judge: Laskin, Armstrong and Lang, JJ.A.
• Neutral Citation: 2010 ONCA 92
• Citation: (2010), 265 O.A.C. 121 (CA),2010 ONCA 92,75 RFL (6th) 33,[2010] CarswellOnt 563,[2010] OJ No 427 (QL),185 ACWS (3d) 616,265 OAC 121,[2010] O.J. No 427 (QL),(2010), 265 OAC 121 (CA),265 O.A.C. 121
• Date: 03 February 2010
• Court: Court of Appeal (Ontario)

Purcaru v. Purcaru (2010), 265 O.A.C. 121 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AU.068

Felicia Purcaru (applicant/respondent) v. Dan Purcaru (respondent/appellant)

(C50549; 2010 ONCA 92)

Indexed As: Purcaru v. Purcaru

Ontario Court of Appeal

Laskin, Armstrong and Lang, JJ.A.

February 3, 2010.

Summary:

Spouses separated in 2003 after 7.5 years' marriage and two children. Both were well-educated and successful computer consultants. In September 2004, the wife petitioned for a divorce and corollary relief. The litigation was acrimonious and protracted. The husband continually refused to make financial disclosure, and defied non-depletion, non-disposition and restraining orders issued by the court. At the opening of the trial, the wife moved to strike the husband's pleadings because of his multiple, continuous and egregious breaches of court orders. The husband was offered an adjournment to seek the advice of counsel and was given a further opportunity to remedy or explain his defaults respecting the court-ordered financial disclosure. The husband declined.

The Ontario Superior Court struck the husband's pleadings and financial statements and restricted his participation at trial to that of an observer. After the wife presented her evidence and argument, the trial judge granted a divorce, determined the amount of the equalization payment, found the husband liable for a $140,000 tax liability, and awarded the wife monthly child support, child support arrears and retroactive spousal support. The husband appealed both the striking of his pleadings and the substantive disposition of the matters at trial.

The Ontario Court of Appeal dismissed the appeal, stating that "in view of the unusual circumstances of this case, it was open to the trial judge on the motion to exercise his discretion to strike [the husband's] pleading and thereby restrict his participation at trial. In deciding to do so, the trial judge was cognizant of the proper principles and the severity of the sanction he imposed". The court found no basis to interfere with any of the corollary relief awarded.

Family Law - Topic 947

Husband and wife - Marital property - Distribution orders - Practice - Financial disclosure (incl. assets and their value) - [See Practice - Topic 2237 ].

Family Law - Topic 970

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

Family Law - Topic 2199

Custody and access - Practice - Pleadings (incl. amendment of) - [See Practice - Topic 2237 ].

Family Law - Topic 4133

Divorce - Practice - Pleadings - Divorce - [See Practice - Topic 2237 ].

Practice - Topic 2237

Pleadings - Striking out pleadings - Grounds - Failure to obey court order - In acrimonious and protracted divorce and family asset division proceedings, the husband admittedly breached court orders requiring him to make financial disclosure - He also depleted or disposed of assets, breached restraining orders and attempted to conceal his breaches - His misconduct compromised his obligations to his wife and children and seriously prejudiced them - At the opening of the trial, the wife moved to strike the husband's pleadings because of his multiple, continuing and egregious breaches - The trial judge, before ruling, offered the husband an adjournment to obtain legal advice - The trial judge warned the husband that allowing the wife's motion would deprive him of his opportunity to present his case and suggested that the husband remedy or explain his defaults to avoid that outcome - The husband declined - The trial judge then struck the husband's pleadings and financial statements and restricted his participation at trial to that of an observer - The Ontario Court of Appeal, in dismissing the husband's appeal against the remedy imposed, stated that "in view of the unusual circumstances of this case, it was open to the trial judge on the motion to exercise his discretion to strike [the husband's] pleading and thereby restrict his participation at trial. In deciding to do so, the trial judge was cognizant of the proper principles and the severity of the sanction he imposed." - There was ample evidence for the trial judge to conclude that the husband would neither remedy his misconduct nor comply with his disclosure obligations - The trial judge was entitled to impose a remedy that would provide a strong disincentive against breaching court orders and did not err in finding that there was no less drastic remedy that would achieve that result in this case - There was also no error in the extreme sanction of denying the husband's trial participation on the ground that it would unnecessarily prolong the trial, serve no useful purpose and would only increase the wife's costs - There was no error in permitting lesser forms of trial participation or a costs penalty, as both would be ineffective - See paragraphs 34 to 65.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - A husband in a divorce proceeding had his pleadings struck and his participation in the trial was restricted to being an observer - The basis of the order was the husband's continuing refusal to make financial disclosure in open defiance of various court orders - The husband appealed and sought to introduce new evidence on the appeal - The new evidence was medical evidence respecting his psychiatric issues and the effect these issues played in his defiance of the court orders - The Ontario Court of Appeal denied leave to admit the medical evidence - The evidence was unreliable and, in any event would not have affected the trial outcome - The husband's psychiatric issues and their effect were live issues at the trial - The court rejected the husband's submission that the medical evidence could not have been adduced at trial with due diligence - See paragraphs 36 to 46.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 81, refd to. [para. 38].

King v. Mongrain (2009), 252 O.A.C. 54; 66 R.F.L.(6th) 267 (C.A.), refd to. [para. 48].

Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.), refd to. [para. 48].

Marcoccia v. Marcoccia, [2008] O.A.C. Uned. 622; 60 R.F.L.(6th) 1; 2008 ONCA 866, refd to. [para. 49].

Sleiman v. Sleiman, [2002] O.A.C. Uned. 112; 28 R.F.L.(5th) 447 (C.A.), refd to. [para. 50].

Vacca v. Banks et al., [2005] O.A.C. Uned. 43; 6 C.P.C.(6th) 22 (Div. Ct.), refd to. [para. 50].

Counsel:

Warren W. Tobias, for the appellant;

John Legge, for the respondent.

This appeal was heard on October 30, 2009, before Laskin, Armstrong and Lang, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Lang, J.A., and released on February 3, 2010.