In a spousal support and matrimonial property proceeding, the Defendant failed to provide required disclosure and, as a contempt sanction, his pleadings were struck. The Court was then asked to determine whether the Defendant should be allowed to participate in the upcoming Trial, despite that his pleadings were struck.

The Court determined that striking the Defendant’s pleadings resulted in deemed admissions of the Plaintiff’s factual allegations. However, it did not determine questions of law or mixed fact and law, such as the Plaintiff’s entitlement to spousal support or property division.

The Court noted that Rules 3.36 and 3.37 address Noting in Default where pleadings are struck and, pursuant to Rule 12.3, those Rules apply to family law cases. However, Justice Lema determined that Rule 3.36 did not apply because the Plaintiff’s claim did not seek recovery of property, debt, or liquidated damages. Instead, Lema J. considered the Court’s options pursuant to Rule 3.37(3), which sets out the remedies available where a Plaintiff applies to Note a Defendant in Default.

The Court found that striking a defence and Noting a Defendant in Default are functionally equivalent. Both carry the same consequences and options for next steps. Lema J. noted that Rules 3.36 and 3.37 do not address whether a Defendant continues to have a right to participate in the proceeding or the nature and extent of any such right. As a result, Justice Lema found that Rule 3.37 does not necessarily translate to a bar to a Defendant participating where Notice is given and the Defendant wishes to participate.

In particular, the Court considered Rule 3.37(3)(b), which provides the Court with the power to make any Order necessary in the face of an Application to Note in Default. Justice Lema concluded that this power could be used to allow a Defendant to participate in a Trial and to give evidence, despite that their pleadings have been struck, if the Defendant’s evidence does not contradict any of the deemed admitted facts in the Plaintiff’s claim.

In this case, the Court noted that the pleadings were struck as a form of contempt sanction. Pursuant to Rule 10.53, a complete ban on evidence from the Defendant could have been included as part of the contempt sanction but was not. However, the Court determined that the Defendant’s failure to make required disclosures should bar him from presenting any new evidence at Trial, except information sought by the Plaintiff.

The Court granted an Order permitting the Defendant to file a Pre-Trial Brief, make an opening statement, cross-examine the Plaintiff and her witnesses, and make a closing argument at Trial. This was granted because: the initial draft of the Streamlined Trial Order contemplated some level of participation by the Defendant; the Defendant intended to challenge legal positions and had concerns about the Plaintiff’s assets and income; the Defendant only sought participation to the degree reflected in the initial draft Streamlined Trial Order; and there was no evidence that the Defendant’s participation would be disruptive or counterproductive. The Court concluded that allowing participation consistent with the initial Trial Order would not undermine the Order striking the Defendant’s pleadings. The Order allowing the Defendant’s participation was therefore granted.