COURT OF APPEAL FOR ONTARIO
van Rensburg J.A. (In Chambers)
BETWEEN
Merle Carpenter
Applicant (Moving Party)
and
Jamie Lee Carpenter
Respondent (Respondent)
Gordon S. Campbell, for the moving party
Jamie Lee Carpenter, acting in person
Kenneth Younie, duty counsel for the respondent
Heard: April 6, 2016
ENDORSEMENT
A. Introduction
1This is a motion for an extension of time to appeal two orders made in a matrimonial proceeding. The first is dated November 13, 2013, and provided for the striking of the moving party’s pleadings in the event that he did not pay $2,000 in costs within ten days. The second is dated April 17, 2014 and is a final order in an uncontested trial.
B. Facts
2The parties were involved in high-conflict matrimonial proceedings. There were interim orders, including an order of Minnema J. dated July 9, 2013, requiring Mr. Carpenter to pay Ms. Carpenter an amount for retroactive child and spousal support and $7,000 in costs.
3The matter was scheduled for trial. On November 13, 2013 the parties appeared on a motion and counter-motion. Mr. Carpenter brought a motion for disclosure of certain financial documents. Ms. Carpenter brought a counter-motion asking that the trial date be adjourned, and for an order striking Mr. Carpenter’s pleadings if he failed to pay the amounts required by the Minnema J. order by December 15, 2013.
4Although Mr. Carpenter was self-represented, he was assisted at the hearing of the motions by his former counsel, Mr. Coderre. Mr. Coderre confirmed that neither party was ready for trial and that an adjournment of the trial until the May 2014 court sittings was in order. Ms. Carpenter was represented by counsel.
5After the motion to strike Mr. Carpenter’s pleadings had been addressed at some length, Mr. Coderre requested an adjournment of the motion so that Mr. Carpenter, who had not delivered any responding materials since being served ten days earlier, could respond with evidence about his efforts to pay the arrears. Ultimately, Pelletier J. adjourned both motions to be heard no later than January 17, 2014, and ordered Mr. Carpenter to pay $2,000 in costs within ten days, failing which his pleadings would be struck and the matter could proceed by way of affidavit for uncontested trial. If costs were paid and the motions were to proceed, Mr. Carpenter was to serve and file responding materials at least ten days before the motion return date.
6Mr. Carpenter did not pay the costs ordered by Pelletier J. As a result, his pleadings were struck without further notice to him. On December 10, 2013, he made an assignment in bankruptcy.
7In March 2014 the trial proceeded as an uncontested trial before Labrosse J., resulting in a final order dated April 17, 2014 (the “Final Order”).
8The Final Order, among other things, provided for:
shared custody of the two children of the marriage (there is also a foster child but she was not addressed in the order);
payment by Mr. Carpenter to Ms. Carpenter of $143,500 representing 50% of Mr. Carpenter’s pension credits accumulated during the marriage, to be effected by way of a Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II rollover. The order required the plan and administrator to transfer $143,500 into a qualified retirement savings vehicle chosen by Ms. Carpenter, and stated “the amount is based on [Mr. Carpenter’s] unsworn NFP calculation, being the best available evidence”;
child support of $1,659 per month commencing April 1, 2014, based on Ms. Carpenter’s income being $20,000 and Mr. Carpenter’s income being $145,936, being his three year average for 2010 to 2012, and removing severance pay he received in 2012 from his 2012 income;
spousal support fixed at $2,640 per month from April 1, 2014;
arrears of child support and spousal support due under the order of Minnema J. fixed at $25,357 and required to be paid at the rate of $500 per month commencing April 1, 2014 until paid in full;
retroactive spousal support fixed in the amount of $36,923 to be paid by way of a transfer from Mr. Carpenter’s pension and effected by way of a Pension Benefits Division Act rollover;
payment of the outstanding costs orders of Minnema J. and Pelletier J.; and
payment of Ms. Carpenter’s costs of the application (with the portion of costs related to the issues of child and spousal support enforced by the Family Responsibility Office (“FRO”) as support forthwith).
C. The Test for an Extension of Time
9Whether to extend time to appeal is in the discretion of the court. The relevant factors are (a) whether the appellant formed an intention to appeal within the relevant period; (b) the length of the delay and the explanation for the delay; (c) any prejudice to the respondent; (d) the merits of the appeal; and (e) whether the “justice of the case” requires the extension. The governing principle is simply whether the “justice of the case” requires that an extension be given: Rizzi v. Marvos, 2007 ONCA 350, at paras. 16 and 17.
D. Positions of the Parties
10Mr. Carpenter contends that the fact that he was self-represented meant that he did not understand the implications of having his pleadings struck. He submits that he did not learn of the Final Order until May 29, 2014, and thereafter brought the motion as soon as he was able to retain counsel. He has not moved forward with the motion in the past year because he was trying to settle with the respondent. Mr. Carpenter asserts that important issues were determined without his involvement, that there were “numerous factual and legal errors”, and he is suffering from the financial burden of the enforcement by FRO of the Final Order.
11Ms. Carpenter resists the motion. She relies on the chronology of what occurred leading to the order to strike Mr. Carpenter’s pleadings, which included significant defaults in payment of child and spousal support. She notes that Mr. Carpenter has complied with few of the provisions of the Final Order, including the return of her items of sentimental value, and the transfer of the required part of his pension. She says that, although he was not at the uncontested trial, Mr. Carpenter’s evidence was considered by the court. She would be prejudiced if the appeal were to proceed, as she paid for legal representation in the proceedings below (and still owes her counsel money), but cannot afford a lawyer for the appeal and any future proceedings.
E. ANALYSIS
(1) Intention to appeal and explanation for delay
12Mr. Carpenter contends that he always intended to appeal the orders and that he has a reasonable explanation for his delay. To a significant extent he relies on the fact that he has been self-represented.
13I do not accept Mr. Carpenter’s claim that he failed to understand the implications of Pelletier J.’s November 13, 2013 order because he was self-represented. He was in court that day with a lawyer. He had been served ten days earlier with a motion to strike his pleadings but had filed no responding materials. His lawyer only requested an adjournment after significant argument had been addressed to the very issue of whether his pleadings should be struck because of the outstanding arrears. The transcript reveals that almost the entire hearing was devoted to whether Mr. Carpenter’s pleadings should be struck, and the necessary consequence that the trial would proceed as an uncontested trial was fully discussed in his presence.
14When the sum of $2,000 was proposed for Ms. Carpenter’s costs thrown away as a condition of the adjournment of the motion, his counsel demurred, but Mr. Carpenter objected to the amount. Although he contends he could not pay any amount for costs because he was about to become bankrupt, nothing was said at the hearing about his impending bankruptcy. In these circumstances, the uncontested trial that followed was not, as Mr. Carpenter states, a “tactic” adopted by Ms. Carpenter’s lawyer. He knew that if he failed to pay $2,000 in costs within ten days the trial would proceed on an uncontested basis.
15With respect to the Final Order, I accept Mr. Carpenter’s evidence that he did not learn of it until he received a copy from the respondent’s counsel. That does not mean that he had no knowledge that such an order would be made, but simply that he did not know that the uncontested trial had taken place, and of its results, until May 29, 2014. Mr. Carpenter contends that he took steps promptly to try to retain counsel to launch an appeal. He contacted various lawyers, until in September 2014 he retained his present counsel, and after several months was able to initiate his motion to extend time in February 2015.
16The fact that Mr. Carpenter was self-represented does not excuse his failure to comply with the necessary time limit or, once he was aware of the Final Order, to move promptly for an extension of time. Any participant in litigation, including a self-represented party, has a responsibility to familiarize himself or herself with the procedures relevant to the case: McDowell v. Cavan-Millbrook - North Monaghan (Municipality), 2016 ONCA 193, at paras. 20 and 21. As such, the fact that Mr. Carpenter took several months to seek out and then retain counsel to bring this motion is an answer but not a full and satisfactory explanation for his delay.
17The final period of delay is that of more than a year between when Mr. Carpenter first brought his motion before this court and when it was heard. On February 11, 2015, the motion was adjourned so that the respondent could have the assistance of counsel. Mr. Carpenter says that thereafter he was trying to settle. Although the respondent says she never agreed to a suspension of time during this period, I accept that there is a reasonable explanation for Mr. Carpenter’s delay in bringing the motion back before the court.
18In all the circumstances, however, I do not find that Mr. Carpenter moved promptly before this court to seek an extension of time to appeal the two orders in question. That said, delay is only one factor. I turn now to consider other factors relevant to the “justice of the case”.
(2) The justice of the case
19With respect to the merits of his proposed appeals, Mr. Carpenter says that striking pleadings is a remedy of last resort that ought not to have been imposed for his failure to pay a costs order. I accept that an order to strike pleadings is an exceptional order that should be made only as a last resort, and that it is preferable that the court hear from both sides when determining matrimonial proceedings. See Chiaramonte v. Chiaramonte, 2013 ONCA 641, at paras. 31-32.
20That said, the Family Law Rules, O. Reg. 114/99 provide for such a sanction, which is frequently exercised where there has been a repeated failure to comply with court orders, especially for disclosure. And a motion judge’s decision to strike pleadings and deny participation at trial is entitled to deference if exercised on proper principles: Chiaramonte, at para. 33. It is impossible to tell from the record before this court whether in all the circumstances it would have been appropriate for the motion judge to strike Mr. Carpenter’s pleadings for failure to comply with Minnema J.’s order, or whether that automatic sanction for Mr. Carpenter’s failure to pay Ms. Carpenter’s costs thrown away was an appropriate exercise of the motion judge’s discretion.
21As such, I am unable to say that Mr. Carpenter’s proposed appeal is entirely devoid of merit. If he were successful in setting aside the order striking pleadings, then it would follow that there was no legal basis for an uncontested trial.
22There are, however, other important considerations in this case. Permitting an appeal at this stage would prejudice the respondent. She took the necessary steps to bring the litigation to a close, and she has no financial resources to retain counsel to respond to an appeal. More importantly, I am not satisfied that the Final Order has unfairly benefited Ms. Carpenter or resulted in any real injustice to Mr. Carpenter. While he argues a denial of procedural fairness in the uncontested trial process, there is nothing to suggest that the substantive results of the trial would have been any different had Mr. Carpenter participated.
23Mr. Carpenter provides no evidence at all to support his contention that the trial judge made “numerous factual and legal errors” or that the trial judge “erroneously calculated arrears and support payments” or made a “seriously flawed pension division calculation”.
24A review of the transcript discloses that the trial judge carefully considered all relevant evidence, including evidence favourable to Mr. Carpenter. Extensive reference was made to Mr. Carpenter’s available financial disclosure, including his income tax returns and an estimate of the revised valuation of his pension taken from his unsworn net family property statement. The trial judge imputed income to Ms. Carpenter, who was working inconsistently on a part-time basis. He took into consideration where the children were living, and the parties’ agreement respecting parenting. He considered the implications of Mr. Carpenter’s bankruptcy, including the trustee’s communication to Ms. Carpenter’s counsel that the pension was an exempt asset (which Mr. Carpenter does not dispute), and the fact that Mr. Carpenter’s obligations for the parties’ debts would be discharged. The trial judge awarded retroactive spousal support at the midpoint of the mid to low range of the Spousal Support Advisory Guidelines (“SSAGs”), in light of Mr. Carpenter’s significant debts prior to his bankruptcy. Going forward, he awarded spousal support at the mid range of the SSAGs, calculated using Ms. Carpenter’s imputed income and an average of Mr. Carpenter’s income over three years (excluding a severance payment), and based child support on the parties’ shared custody of the children.
25Mr. Carpenter’s affidavits sworn in January 2015 and January 2016 suggest that the child and spousal support awards are too high in view of his recent earnings, and his obligations in respect of the children. He also contends that the order made would not permit him the time and ability to travel with the children to the Northwest Territories, to be exposed to their aboriginal heritage. But changes in Mr. Carpenter’s income and the residence of the children, as well as any travel and holiday considerations for the children, can be addressed through a motion to change the Final Order.
26Finally, I note that Mr. Carpenter’s affidavits emphasize that it was his preference to settle matters with Ms. Carpenter, rather than to proceed with litigation. That was what he told Pelletier J. in November 2013, and even in the past year he did not proceed with his motion for an extension of time while he tried to settle. Whether Mr. Carpenter would have preferred a settlement is not the issue. Ms. Carpenter was entitled to proceed to court, and once court orders were made they were binding on Mr. Carpenter, who was not entitled to disregard them in favour of further efforts at negotiation.
F. Disposition
27In all the circumstances, I have concluded that the justice of the case does not require this court to grant an extension of time for the moving party to appeal the subject orders. His motion is therefore dismissed, without costs.
“K. van Rensburg J.A.”
