Court of Appeal for Ontario

Date: 20220526 Docket: M53062 (C69572)

Roberts, Zarnett and Coroza JJ.A.

BETWEEN

Vivian Ammar Applicant (Respondent in appeal) (Responding party)

AND

Michael Lawrence Perdelwitz (Smith) Respondent (Appellant in appeal) (Moving party)

Counsel: Michael Lawrence Perdelwitz (Smith), acting in person Susan Harris, for the responding party

Heard: May 20, 2022

Reasons for Decision

[1] Mr. Smith seeks to appeal the April 29, 2021 judgment of the trial judge respecting parenting, child and spousal support, and property issues, following a five-day trial. Ms. Ammar is Mr. Smith’s former spouse, with whom he has two young children.

[2] Mr. Smith was granted several extensions by Ms. Ammar to perfect his appeal and failed to do so. Finally, Mr. Smith brought a motion in writing and obtained an order on consent from a single motion judge of this court on December 15, 2021, which required Mr. Smith to file his appeal factum of no more than 30 pages, exhibit book, appeal book, and compendium no later than December 16, 2021. The consent order provided that the December 16, 2021 filing deadline was peremptory and that failure to meet the deadline would result in the appellant’s appeal being dismissed with costs thrown away and payable to the respondent in an amount to be advised. Mr. Smith failed to meet the December 16, 2021 deadline.

[3] Mr. Smith now seeks to set aside the December 15, 2021 consent order and to obtain a further extension of time to perfect his appeal. We are not persuaded that it is in the interests of justice to grant Mr. Smith’s motion.

[4] Mr. Smith points to no error in the consent order. He has not filed any affidavit evidence that explains the delay in perfecting his appeal or his failure to comply with the consent order. He claims that he encountered technical problems when producing and filing the appeal materials. We do not accept this excuse as an adequate explanation for his undue delay in perfecting his appeal to date nor for his failure to comply with the consent order that he instigated. He has also failed to provide any basis on which we could assess the merits of his appeal.

[5] In these circumstances, there is no unfairness to Mr. Smith in enforcing the consent order. With his agreement, the consent order was made peremptory to him and clearly articulated the consequences to him if he failed to comply with the deadline and terms to which he consented.

[6] On the other hand, the prejudice and unfairness to Ms. Ammar and the parties’ children is clear. Ms. Ammar has incurred considerable expense because of Mr. Smith’s delay in perfecting his appeal, his deficient appeal materials, and his numerous requests for extensions, which she fairly and generously granted. Delay in family proceedings is antithetical to the best interests of the children who require finality and peace: Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 6.

[7] We therefore see no basis to set aside the consent order or grant any further extensions.

Disposition

[8] For these reasons, Mr. Smith’s motion to set aside the consent order is dismissed.

[9] In accordance with the terms of the consent order, Ms. Ammar is entitled to her costs thrown away on the appeal from Mr. Smith, payable forthwith, in the amount of $2,209.15, inclusive of disbursements and applicable taxes.

[10] With respect to the motion, we are of the view that this is one of the exceptional circumstances that warrant full indemnity costs. Mr. Smith’s motion was without any merit. Ms. Ammar should not have been put to the expense of responding to it. Ms. Ammar is therefore entitled to her costs of this motion from Mr. Smith, payable forthwith, in the amount of $4,850.53, inclusive of disbursements and applicable taxes.

“L.B. Roberts J.A.”

“B. Zarnett J.A.”

“S. Coroza J.A.”