Disclaimer: This article aims to provide educational information on what to do if your ex does not follow a divorce court order. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.
A large part of settling issues around your separation and divorce surrounds pleadings. These are the formal documents that outline each party’s claims. The court may be called upon to make interim orders to address different matters throughout the process.
What happens, though, if one party does not comply with a divorce court order?
The courts have many options, the most drastic of which is striking pleadings. In this article, we will build upon the role of pleadings and orders in family law. Then we will discuss striking orders and how you can use this remedy.
At Plat Simionati LLP, we protect our client’s legal rights, using all of the means available by law. We invite you to book a consultation with our team today to learn more about how to navigate your divorce.
What are pleadings?
At its core, pleadings in family law cases are like a dialogue between the parties. One party, the Applicant, begins the conversation by filing an Application that outlines what relief they want from the courts and their basis for asking for that relief. The Respondent’s Answer serves as their response to the statements in the application and they can likewise ask the court for relief. The applicant then has the chance to respond with the Reply.
The pleadings serve to define and give notice regarding the matters at issue between the parties.
Interim Orders and Compliance
As family law cases unfold, interim orders often become necessary to address matters prior to trial. These orders, issued throughout the course of proceedings, can include mandates related to financial disclosure, child and spousal support, parenting time and decision-making, and more.
Complying with the court’s orders is not optional; it is mandatory. It maintains the integrity of the process and safeguards the interests of all the parties involved, including any children.
However, oftentimes emotions can cloud the parties’ judgment and influence their behaviour. The reality is that non-compliance with the court’s orders is not uncommon.
So, what are your options?
Striking Orders: A Necessary Measure
In instances where one party consistently fails to comply with orders, the other party can bring a motion to strike the non-compliant party’s pleadings. This happens in rare circumstances. What happens then?
The consequences are severe. Rule 1(8.4) of The Family Law Rules set out the default consequences:
If an order is made striking out a party’s application, answer, motion to change, or response to a motion to change in a case, the following consequences apply unless a court orders otherwise:
- The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
- The party is not entitled to participate in the case in any way.
- The court may deal with the case in the party’s absence.
- A date may be set for an uncontested trial of the case.
What does this mean? It means that the party’s ability to actively participate in the case is severely limited. They won’t receive further notices about the case’s progress and are barred from engaging in the proceedings. The court can proceed with the case without their involvement, and potentially make decisions in their absence.
Courts can also issue orders that selectively restrict a party’s involvement in certain areas while allowing participation in others.
For example, suppose one party consistently fails to properly disclose financial information but is cooperative when it comes to parenting arrangements. The court might limit their participation only as it relates to financial disclosure but allow them to participate with respect to child-related matters.
It’s important to remember the overarching principle behind The Family Law Rules, namely to deal with each case in a just manner and ensure that the process is fair to all parties.
What will the courts consider before handing down an order to strike pleadings?
Given the grave consequences of granting such an order, it is an exceptional remedy that the courts do not take lightly.
The court must determine whether the party’s non-compliance warrants such a severe remedy. It will evaluate the extent of the non-compliance, the reasons behind it, and the potential impact on the case. The courts will consider whether the remedy is proportionate to the issues at hand and the conduct of the non-compliance party.
Exploring Your Options with Plat Simionati LLP
The dynamics of separation and divorce cases are multifaceted, often requiring meticulous attention to legal procedures and remedies. When non-compliance with a divorce court order surfaces, the repercussions can be far-reaching.
Plat Simionati LLP is committed to safeguarding your rights and interests throughout the divorce journey. We encourage you to book a consultation with our team. We can guide you through the intricate landscape of family law and provide you with the knowledge and support you need to navigate your divorce proceedings.