Court of Appeal for Ontario

Date: 2017-10-02

Docket: M48230 (C63525)

Brown J.A. (In Chambers)

Between

Ralph Thomas James Sickinger Moving Party

and

Penelope Kay Sickinger Respondent

Counsel

Brian Ludmer, for the moving party, Ralph Thomas James Sickinger

Glenn Smith, for the responding party, Penelope Kay Sickinger

Heard: September 20, 2017

Endorsement

I. OVERVIEW

[1] In this long-running family law litigation, the moving party, Ralph Sickinger, moves to set aside the May 23, 2017 administrative dismissal of his appeal for delay (the "Dismissal Order"). For the reasons that follow, I dismiss his motion.

II. PROCEDURAL HISTORY

[2] Ralph and Penelope Sickinger married in 1991. They have three children, now ranging in age from 17 to 23 years old. They entered into a separation agreement in 2007; a divorce was granted in 2008.

[3] In 2009, Mr. Sickinger brought a motion to change. Prior to the trial of the motion, he was deemed to have filed an assignment in bankruptcy. A seven day trial took place in late 2011 and early 2012, resulting in the March 30, 2012 final order of Perkins J.

[4] That order was predicated on all three children residing with Ms. Sickinger. In 2013, the two oldest children changed their residence and stopped living with their mother.

[5] In April, 2014, Mr. Sickinger commenced the present motion to change. Extensive case conferencing ensued. Starting at least with the December 19, 2014 case conference before Kruzick J., the case management judges directed the motion for change to be decided on a one-day motion, not at a trial.

[6] In November, 2014, Mr. Sickinger was discharged from bankruptcy. Around the same time Ms. Sickinger went on social assistance.

[7] In her January 25, 2016 endorsement, Backhouse J. noted that Mr. Sickinger was not paying the required child support. She wrote: "If payment does not resume forthwith, then this Motion to Change should be dismissed."

[8] At the August 15, 2016 conference, the court ordered Mr. Sickinger to provide stipulated disclosure by October 14, 2016. Hood J. noted that much of the disclosure was the same as that previously ordered by case management judges in July and October, 2014, which Mr. Sickinger had not provided.

[9] On December 13, 2016, Mr. Sickinger sought an adjournment of his motion to change on the basis that he would be physically unable to attend and "other business related reasons." In her endorsement of that date, Harvison-Young J. noted Mr. Sickinger had only made three monthly support payments since the January 25, 2016 endorsement. Harvison-Young J. adjourned the hearing of Mr. Sickinger's motion to change until December 22, 2016 to give him "a last chance to comply with the outstanding court orders."

[10] On December 22, 2016 Mr. Sickinger sought yet another adjournment of his motion to change. Glustein J. adjourned the motion to February 28, 2017, but made the hearing peremptory to Mr. Sickinger. He also ordered Mr. Sickinger, on a peremptory basis, to serve any further affidavit material by January 16, 2017 and stipulated no further affidavit material could be filed thereafter.

[11] The motion to change initiated by Mr. Sickinger in April 2014 finally was heard almost three years later on February 28, 2017 by McWatt J., who dismissed the motion. In her endorsement dated March 6, 2017, McWatt J. wrote:

First and foremost, [Mr. Sickinger] has not produced his 2015 Income Tax Return or his 2015 Notice of Assessment and there is no valid reason for it. He has not produced his 2014 Income Tax return and Notice of Assessment. He has not produced any income tax returns at all.

[12] McWatt J. also found Mr. Sickinger had not demonstrated a material change since the final order of Perkins J. She terminated the child support for the two oldest children as of December 19, 2014; both had stopped living with their mother in 2013. McWatt J. increased the child support payable by the father for the third child effective June 2016 due to Mr. Sickinger's increase in income. She also fixed Mr. Sickinger's arrears of child and spousal support at $83,544.

III. APPLICABLE TEST

[13] The overriding consideration on a motion to set aside an order dismissing an appeal is the justice of the case, which entails a consideration of the merits of the appeal: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731, at para. 8. In addition, factors analogous to those typically considered on a motion to extend the time to appeal inform a request to set aside the administrative dismissal of an appeal: (i) the explanation for not perfecting the appeal within the time stipulated by the rules; (ii) the length of and explanation for the delay in moving to set aside the administrative dismissal; and (iii) prejudice to the respondent.

[14] More justification must be shown by a party moving to set aside an administrative dismissal of an appeal than would have been required had the party earlier availed itself of its rights to move for an extension of time to perfect the appeal: Langer v. Yorkton Securities Inc. (1986), 57 O.R. (2d) 555 (C.A.), at para. 14.

IV. APPLICATION OF THE TEST

Mr. Sickinger's explanation for not perfecting his appeal in time

[15] Mr. Sickinger filed his notice of appeal of the March 6, 2017 order of McWatt J. on March 22, 2017, together with a certificate respecting evidence.

[16] The registrar sent the parties an April 24, 2017 Notice of Intention to Dismiss Appeal for Delay advising the appeal would be dismissed unless perfected by May 16, 2017. The residential address to which the registrar sent the notice was that listed by Mr. Sickinger on his present motion.

[17] Mr. Sickinger did not perfect his appeal. The registrar issued the Dismissal Order.

[18] As I read his affidavit, Mr. Sickinger offers two explanations about why he did not perfect his appeal in time. First, although he does not have a solicitor of record, he has retained a lawyer, Mr. Ludmer, to assist him with the appeal on a limited mandate. He contends that Mr. Ludmer's trial schedule in March and May of this year prevented him from reviewing Mr. Sickinger's appeal materials.

[19] I do not accept that explanation. It inaccurately suggests Mr. Sickinger's appeal materials were ready this past spring. However, in his August 18, 2017 affidavit Mr. Sickinger deposed that his appeal book and factum had not yet been reviewed by Mr. Ludmer. At the hearing of this motion, Mr. Ludmer submitted Mr. Sickinger required a further 10 business days to finalize his appeal materials. The record strongly suggests Mr. Sickinger is delaying the preparation of the materials needed to perfect his appeal.

[20] The second explanation Mr. Sickinger advances for not perfecting in time is that he never received the registrar's Notice of Intention to Dismiss for Delay. That position is difficult to reconcile with his statements that he asked Mr. Ludmer's staff in April and May of this year to ascertain the status of a "notice of approaching dismissal". It is clear from this evidence that Mr. Sickinger was fully aware of his obligation to perfect the appeal in a timely fashion and the possibility of its dismissal for delay.

[21] In any event, as a result of inquiries made by Mr. Ludmer's staff Mr. Sickinger knew by May 19, 2017 that a notice of intention to dismiss had been issued by the court requiring perfection of his appeal by May 16. Consequently, Mr. Sickinger knew a week before the May 23 Dismissal Order that his appeal was in jeopardy, yet he did not try to perfect it.

Mr. Sickinger's explanation for not moving quickly to set aside the appeal's dismissal

[22] Mr. Sickinger's appeal was dismissed on May 23, 2017. He did not file his motion to set aside the Dismissal Order until three months later on August 24, 2017. He offers several reasons for the delay.

[23] First, Mr. Sickinger deposes that upon learning his appeal would be dismissed, he sought Ms. Sickinger's consent to an extension of time to perfect. On May 29, he learned she would not consent. He then decided to bring a motion to extend the time to perfect. He delayed preparing a notice of motion to extend until June 14, returnable on June 29; it was served on Ms. Sickinger's agent on June 16, 2017. Mr. Ludmer's office then notified Ms. Sickinger on June 26 that the motion would not be proceeding. Mr. Sickinger does not explain why he abandoned his motion to extend.

[24] Second, Mr. Sickinger suggested in his affidavit that draft appeal materials were ready for Mr. Ludmer's review in August. Mr. Sickinger provided no explanation why they were not ready earlier and, for the reasons discussed earlier, I do not accept Mr. Sickinger's suggestion that the materials were ready.

[25] Third, in her March 6, 2017 endorsement McWatt J. called on the parties to file cost submissions. She released her costs reasons on May 12, 2017. Mr. Ludmer deposes he wants to appeal the costs order. He contends he cannot perfect his appeal of the March 6, 2017 order until the costs order has been taken out. He further deposes that as of August 18, 2017 the costs order had not been issued by the court.

[26] That is not the case. The May 12, 2017 costs order of McWatt J. was issued on June 26, 2017. A July 6, 2017 email from Ms. Sickinger's agent to Mr. Sickinger sent the issued order to Mr. Sickinger.

[27] Taken together, these three reasons hold no water. Instead, they disclose a persistent strategy of foot-dragging by Mr. Sickinger. I conclude Mr. Sickinger has not provided a reasonable explanation for his delay to move to set aside the Dismissal Order.

The merits of the appeal

[28] Mr. Sickinger's notice of appeal and affidavit in support of his motion to set aside disclose four main grounds of appeal: (i) he was denied procedural fairness by not having a right to file reply evidence on a motion to change heard solely on affidavit evidence; (ii) the children should have been represented on the motion to change; (iii) the motion judge failed to consider all relevant factors with respect to the parties' respective support obligations; and (iv) the motion judge failed to render sufficient reasons that would permit appellate review.

[29] Based on the record before me, Mr. Sickinger's grounds of appeal have little merit:

(i) The December 22, 2016 endorsement of Glustein J. required all affidavits to be filed by January 16, 2017. No appeal was taken from that order. The peremptory nature of the order is quite understandable in light of Mr. Sickinger's three-year delay in bringing on his own motion to change;

(ii) Two of the children are now adults. They have not made any submissions on this motion that their rights were prejudiced by the March 6, 2017 final order;

(iii) Mr. Sickinger's assertion that the motion judge failed to consider all relevant factors with respect to the parties' respective support obligations lacks details and evidentiary support. In making her order, McWatt J. relied, in part, on Mr. Sickinger's failure to provide his 2014 and 2015 income tax information. It is telling Mr. Sickinger did not include that missing information in his materials on this motion to set aside; and

(iv) The motion judge wrote a comprehensive endorsement explaining her decision. Her endorsement is more than sufficient to permit appellate review.

The prejudice to the respondent support recipient

[30] Ms. Sickinger deposed she would be prejudiced if the Dismissal Order is set aside. She states support arrears now exceed $100,000, and that she "ought not be required to continue in litigation in which [Mr. Sickinger] has refused to abide by the court process."

[31] I accept her submission.

V. DISPOSITION

[32] I conclude the justice of the case requires dismissing Mr. Sickinger's motion: the merits of his appeal are very weak; he has not adequately explained why he failed to perfect his appeal within the time required by the Rules of Civil Procedure; he has not justified his delay in moving to set aside the Dismissal Order; and his delay is prejudicing Ms. Sickinger.

[33] For these reasons, I dismiss his motion to set aside the May 23, 2017 order dismissing his appeal. Ms. Sickinger did not seek any costs of the motion, so there will be no order as to costs.

"David Brown J.A."