Judge who issued three production orders finds egregious noncompliance
The Ontario Court of Appeal has dismissed a former husband’s appeal against a judge’s order that struck his equalization claim based on his egregious noncompliance with production orders and unwillingness to help the court reach a just resolution.
In Riley v. Riley, 2026 ONCA 328, the parties separated in 2015 following two decades of marriage. In 2016, the appellant ex-husband applied for an equalization payment and other relief from the respondent ex-wife.
The motion judge issued orders for the production of documents on Sept. 15, 2016, Aug. 17, 2018, and Sept. 11, 2018. The documents sought included:
Despite the judge’s case management, the equalization claim remained unresolved. The parties each filed motions regarding compliance with the court-ordered disclosure.
On Apr. 16, 2025, Justice Pamela Hebner of the Ontario Superior Court of Justice struck the appellant’s equalization application under r. 1(8) of the Family Law Rules, O. Reg. 114/99.
The motion judge determined that the appellant had failed to comply with the production orders and that it would be unfair to expect the respondent to defend against the appellant’s equalization claim without the information he should have disclosed.
On appeal, the appellant alleged that the judge erred in exercising her discretion to strike his application, failed to consider less drastic alternative remedies, and failed to appropriately address his extensive disclosure and the irrelevance of the documents he did not disclose.
The Court of Appeal for Ontario dismissed the appeal. The appeal court ordered the appellant ex-husband to pay the respondent ex-wife all-inclusive appeal costs of $10,000, as agreed.
Seeing no grounds for appellate interference, the appeal court deferred to the motion judge’s findings in the exercise of her discretion.
The appeal court found the judge entitled to consider striking the appellant’s application justified in the circumstances. The appeal court noted that the judge:
The appeal court pointed out that the appellant failed to comply fully with the production orders despite his lengthy opportunity to do so and failed to suggest an alternative remedy, including a remedy to the unfairness of requiring the respondent to defend against the claim without the ordered disclosure.
The appeal court rejected the appellant’s arguments that the non-disclosure was minimally relevant and that his extensive disclosure compensated for his failure to disclose. The appeal court held that the judge’s findings of egregious non-disclosure and unfairness to the respondent undercut these arguments.
The appeal court ruled that the judge properly considered the relevance of the non-disclosure under the framework in Mullin v. Sherlock, 2018 ONCA 1063.
The appeal court explained that the judge determined that the court could not fairly assess the equalization claim without all his bank account statements or documents regarding the businesses in which he allegedly had an interest.
The appeal court recognized that a court needed a full financial picture to address a party’s net family property and equalization claim.
Regarding the appellant’s assertion that the documents sought were irrelevant because he had no interest in the businesses at the valuation date, the appeal court noted that the judge found his evidence inconsistent and ordered the production of documents relevant to the contested issues of whether he had a business interest, when, and of what value.
According to the appeal court, the judge correctly looked beyond what the appellant had produced to determine what he had not produced and appropriately considered his efforts to comply, his explanations for non-compliance, and the impact of his non-compliance on the potential for a just resolution.
