Background
Donald Earl Kerr brought proceedings to compel the sale of the parties’ matrimonial home. Although the home was ultimately sold, the matter required several court attendances.
Beverly Bharath-Kerr repeatedly sought adjournments, failed to comply with disclosure orders, and did not pay outstanding costs orders. Mr. Kerr moved to strike her pleadings because of that continuing non-compliance.
The Court’s Holding
The motion judge declined to strike Ms. Bharath-Kerr’s pleadings, finding that doing so was not in the interests of justice given the issues that remained to be decided. Instead, the judge barred her from filing further materials until she paid the outstanding costs orders.
The Court of Appeal dismissed Ms. Bharath-Kerr’s appeal. It held that the motion judge had considered the available remedies and proportionality, and had made a proportionate order in response to her continued non-compliance. The court also dismissed her motion for leave to file fresh evidence.
Key Takeaways
- A filing bar tied to payment of outstanding costs may be a proportionate response to persistent non-compliance with court orders.
- Striking pleadings is not required where a less severe sanction adequately addresses the misconduct and remaining issues.
- The appellant was ordered to pay $7,500 in appeal costs, inclusive.
Why It Matters
The decision confirms that Ontario courts may use tailored procedural sanctions to enforce compliance in family litigation. Appellate intervention is unlikely where the motion judge considered alternatives and proportionately exercised that discretion.