COURT FILE NO.: 15-DC-2111

DATE: 2016/07/20

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN:

LASZLO SCHWILGIN

Laszlo Schwilgin, Failure to Appear

Applicant (Appellant in Appeal)

– and –

LORI ANNE SZIVY

Respondent (Respondent in Appeal)

Robie S. Loomer, for the Respondent (Respondent in Appeal)

HEARD: July 8, 2016

REASONS on motion to strike appeal

SHEARD J.

1On July 8, 2016 I granted the Respondent’s motion to strike the Appellant’s Appeal to the Divisional Court from the judgment of Justice Kershman dated April 7, 2015. The Respondent, Lori Anne Szivy (“Szivy”), was represented by counsel. The Appellant, Laszlo Schwilgin (“Schwilgin”), did not attend court. His mother, Judith Schwilgin was in the courtroom. She is not a lawyer and could not appear as counsel or agent for her son. However, she was permitted to address the court and advised that she was there to monitor the motion. She also confirmed that Schwilgin’s mailing and e-mail address are as appears on Schwilgin’s Motion Record.

2On July 8, 2016 I struck-out Schwilgin’s appeal and awarded costs to Szivy in the amount of $5,960.19 inclusive of disbursements and HST, payable forthwith by Schwilgin. The costs are to be enforceable by Szivy and by the Family Responsibility Office as the costs relate to Szivy’s efforts to collect outstanding child support. I reserved my reasons for the decision, which are set out below.

History of the Litigation

History of the Litigation

3The litigation between the parties has a long history, punctuated by many judicial decisions. The parties cohabited from 1994 until 2002. They have two children; Alexander now approximately 19 years old, who is autistic, and Jennifer who is now approximately 18 years old. The parties settled all issues between them during a mid-trial settlement conference in May 2006.

4The following court Orders were made:

(1) May 18, 2006: Consent Order of Justice Toscano Roccamo

In this order, Schwilgin consented to child support based on an imputed income of $77,000. He agreed to a monthly payment of $1,215 in child support and $500.00 in spousal support. His deemed income was a compromise between the $138,900 he had claimed on his mortgage application and the zero taxable income he had declared to the CRA.

(2) August 29, 2008: Dismissal Order of Justice Roy

In 2008, Schwilgin moved to vary the custody and support order of Justice Toscano Roccamo. Roy, J. dismissed that motion and ordered Schwilgin to pay $10,000 in costs. Schwilgin also brought a dispute of garnishment claiming he could not pay the $10,000 costs award.

(3) May 20, 2010: Métivier Order

After the Roy, J. dismissal order, Schwilgin stopped payment of all support. In June 2009 Schwilgin brought a new motion to vary the Order of Justice Toscano Roccamo. When FRO attempted to enforce that Order, he began paying $430 in monthly child support. The new motion was heard by Justice Métivier on April 7, 2010. Schwilgin sought to vary custody from sole custody with Szivy, to joint custody or, sole custody to him. He also wanted to vary the child support to zero or to $272.00 based on an income of $17,440.00. He also sought to vary spousal support to zero and to rescind all of the arrears. At the time of the motion, Schwilgin had not paid the Roy, J. costs award of $10,000.

Justice Métivier dismissed Schwilgin’s 2010 motion to change. In dismissing his motion, Justice Métivier observed that Schwilgin was able to maintain a relatively comfortable lifestyle and that he has skills and training but was deliberately underemployed. She also noted that he was engaged in a “shell game” in respect of his use of credit to finance his lifestyle.

Justice Métivier awarded Szivy costs in the amount of $12,000. Schwilgin has not paid those costs.

(4) October 13, 2011: Order of Divisional Court

Schwilgin appealed from the Order of Justice Métivier. A three judge panel of the Divisional Court dismissed Schwilgin’s appeal. Schwilgin was ordered to pay Szivy costs of $5,000.00.

(5) May 20, 2014: Order of Justice Backhouse

In 2013 Schwilgin brought a third motion to vary the order of Justice Toscano Roccamo. This motion was dismissed with costs of $15,548.55. Justice Backhouse also ordered that Schwilgin be enjoined from bringing any further motions to change until he had paid the costs orders in full and retired his outstanding arrears. She also ordered that Schwilgin be required to obtain leave before bringing any further motions. Schwilgin did not pay this cost award.

(6) July 2, 2015: Order, Divisional Court, Quashing Schwilgin’s Appeal

Schwilgin appealed from the decision of Justice Backhouse. The Divisional Court quashed that appeal, which should have been brought to the Court of Appeal, and refused to transfer it to the Court of Appeal. Schwilgin was ordered to pay Szivy $10,000 in costs. Those costs remain unpaid.

(7) August 21, 2015: Order, Court of Appeal, dismissing Schwilgin’s Leave Motion

Schwilgin brought a motion in the Court of Appeal for permission for late service of his motion for leave to appeal from the order of the Divisional Court refusing to transfer his appeal to the Court of Appeal. The Court of Appeal dismissed his motion as “devoid of merit”.

(8) November 24, 2015: Order, Court of Appeal, dismissing Schwilgin’s motion to extend the time for his appeal from the Backhouse, J. Order

Schwilgin brought a second motion to the Court of Appeal seeking permission to serve Szivy by e-mail and to late file his appeal of Justice Backhouse’s decision and of the Divisional Court decision of July 2, 2015 and to introduce fresh evidence. On November 24, 2015, sitting as a single judge of the Court of Appeal, Justice David Brown dismissed Schwilgin’s motion and ordered $1,000 in costs. In his reasons, Justice Brown noted that Schwilgin appeared in person and was assisted by duty counsel.

Reasons of Brown, J.A.

Reasons of Brown, J.A.

5In his Reasons for dismissing Schwilgin’s motion, Justice Brown stated that Schwilgin did not provide a reasonable explanation for his delay for seeking to appeal to the Court of Appeal. He had tried to persuade the court that he mistakenly appealed to the Divisional Court instead of the Court of Appeal because he was a “lay person”. Justice Brown was not persuaded and noted that in her Reasons, Justice Métivier described Schwilgin as a “talented and experienced computer engineer”. Justice Brown also considered Schwilgin’s admission that when he appealed to the Divisional Court, Szivy’s lawyer told him that he appealed to the wrong court. Despite that, Schwilgin persisted with the appeal to the Divisional Court.

6Justice Brown also noted that the Divisional Court declined to exercise its jurisdiction to transfer the appeal to the Court of Appeal and that Schwilgin’s appeal from that Divisional Court decision was also dismissed by Juriansz, J.A. on August 21, 2015.

7Justice Brown stated at para. 12 of his reasons that he was not persuaded that there was merit to Schwilgin’s appeal and held that the justice of the case did not support the granting of the motion to extend time limits. At paras. 21, 22 and 23 of his Reasons Justice Brown states:

…In quashing his appeal from the order of the motion judge, the Divisional Court ordered Mr. Schwilgin to pay Ms. Szivy costs of $10,000. He has not done so. In open court, Mr. Schwilgin said he would not pay those costs because he contends he lacks the resources to pay them.

In her affidavit on the motion, Ms. Szivy deposed that Mr. Schwilgin owes her over $25,000 in costs from their matrimonial proceedings. In her letter of November 16, 2015 in which she transmitted her responding materials to the court, Ms. Szivy wrote:

I do not understand how Mr. Schwilgin is permitted to constantly bring motions and appeals without paying the costs of previous court orders. It seems all the court does is order more costs, which I cannot collect. He gets stern words and a slap on the wrist (costs), and I get a bill from my lawyer. How is this fair?

That is a most legitimate question to ask. Courts usual talk in terms of prejudice which cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.

8Justice Brown awarded Szivy the $1,000 in costs she had incurred to respond to Schwilgin’s motion. Schwilgin was ordered to pay those costs no later than Friday, December 4, 2015.

9By Notice of Motion dated November 28, 2015 Schwilgin appealed from the order of Brown, J.A., who had been sitting as a single judge of the Court of Appeal. He also sought an order granting him an extension of time to deliver his appeal materials and to appeal from the order of Justice Backhouse dated May 20, 2044 and her costs endorsement of May 25, 2014. That motion may still be pending.

April 7, 2015 Garnishment Hearing: Dismissal Order, Kershman, J.

April 7, 2015 Garnishment Hearing: Dismissal Order, Kershman, J.

10In order to collect the support arrears and costs awards owing to her, Szivy sought to garnish Schwilgin’s bank account.

11On April 7, 2015 Schwilgin brought a Dispute of Garnishment before Justice Kershman disputing Szivy’s garnishment of Justice Backhouse’s $15,548.55 costs order of June 25, 2014.

12At that hearing, counsel for Szivy argued that the order of Justice Backhouse prevented Schwilgin from bringing any further motions to change without permission of the court and that a dispute of garnishment was a motion to change.

13On April 7, 2015 Justice Kershman ruled that Schwilgin had not presented sufficient evidence to satisfy the court that the garnishment should be lifted. He dismissed Schwilgin’s Dispute of Garnishment and awarded costs to Szivy of $3,500. He also ordered that Schwilgin not be permitted to bring any further motions of any kind without leave of the court.

May 4, 2015: Schwilgin Appeals Kershman Order

May 4, 2015: Schwilgin Appeals Kershman Order

14By notice of appeal dated May 4, 2015 Schwilgin appealed to the Divisional Court from the final judgment of the Honourable Justice Kershman dated April 7, 2015.

15The transcripts of the proceeding before Justice Kershman were found in the court file as well as the appeal book and, I understand, to that extent, that Schwilgin has taken steps to perfect his appeal. No appeal date has been set.

16By Notice of Motion dated March 10, 2016, Szivy moved to strike Schwilgin’s appeal of Justice Kershman’s order.

17In the file was an affidavit dated July 8, 2015. It was sworn July 5, 2016 and I understand that it may have been filed for use on Szivy’s Motion. It is replete with defamatory allegations made against Szivy and against her lawyer. Although he asserts that the litigation “takes a great toll” on his mental health and “takes an inordinate amount of time to write and recover from.” His energy for litigation, documented above says otherwise.

18I echo the conclusions reached by Brown, J. A. that Szivy cannot be compensated by an award of costs, which are effectively uncollectible. Certainly, neither costs awards nor, apparently, court orders that require Schwilgin to seek leave before bringing motions, seem to have any impact upon his behaviour.

19Counsel for Szivy argued that one of Mr. Schwilgin’s objectives is to force his client to incur legal fees that he knows he will never pay. A similar view was expressed by the Divisional Court at para. 7 of its reasons and reproduced at para. 24 of the reasons of Brown J.A.

The appellant [Schwilgin] has used this appeal as a means of delaying paying the arrears in question and the costs order to the respondent [Szivy]. Further, the appellant has a history of using Court proceedings in this way. This has caused the respondent considerable prejudice.

20Pursuant to my jurisdiction under s. 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43, rule 1(8) of the Family Law Rules, O. Reg. 114/99, s. 57.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and rule 25.11 of the Rules of Civil Procedure, I struck out Schwilgin’s Notice of Appeal. Schwilgin’s conduct as documented in the materials before me on this motion provided an ample basis for that Order.

21Counsel for Szivy also relied on the unreported 2004 Ontario Court of Appeal decision in Brophy v. Brophy. In that case the court stated it is open to a court to dismiss an appeal brought by a spouse who is wilfully in default of their support obligations and orders.

22As stated at the outset of these reasons, I granted Szivy’s motion to strike Schwilgin’s Notice of Appeal from the order of Justice Kershman. In my oral reasons, I also made an order that Schwilgin not be permitted to issue, pursue or proceed with any claim or motion against Szivy without leave of the court and unless and until he has paid Szivy the outstanding support arrears and costs owing to her.

The Honourable Madam Justice Liza Sheard