Court of Appeal for Ontario

Date: 2018-06-08 Docket: C63525 Judges: MacPherson, LaForme and Roberts JJ.A.

Parties

Between

Penelope Kay Sickinger Applicant (Respondent)

and

Ralph Thomas James Sickinger Respondent (Appellant)

Counsel

Gary S. Joseph, for the appellant

Dena N. Varah and Katharine Costin, for the respondent

Heard: June 6, 2018

On appeal from the order of Justice Faye E. McWatt of the Superior Court of Justice, dated March 6, 2017.

Decision

By the Court:

[1] Introduction

[1] The appellant, Ralph Sickinger appeals the motion judge's decision dismissing his motion to change and granting the respondent, Penelope Sickinger's cross-motion.

(1) Background

[2] A brief history leading to this appeal and Mr. Sickinger's motion to adduce fresh evidence will be helpful for context. In April 2008 issues of spousal and child support were decided for Mr. and Ms. Sickinger. Since then they have been engaging in litigation.

[3] In 2009, Mr. Sickinger brought his first motion to change to reduce child support and reduce or terminate spousal support ordered in the April 2008 order. A seven day trial took place in late 2011 and early 2012, resulting in the March 30, 2012 (the "Final Order").

[4] In April 2014, Mr. Sickinger commenced his second motion to change. Extensive case conferencing ensued. The case management judges directed the second motion for change was to be decided on a one-day motion, not at a trial.

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

[6] On August 15, 2016, the case conference judge denied Mr. Sickinger's request for a trial and ordered that Mr. Sickinger's second motion for change was to be heard on affidavit evidence. It was also ordered that Mr. Sickinger was to provide current financial disclosure, including his tax returns, which the case conference judge noted; much of the disclosure had already been ordered to be produced. The motion was scheduled to be heard on December 13, 2016.

[7] On December 13, 2016, having failed to produce the ordered disclosure, Mr. Sickinger sought an adjournment of his second motion to change. Justice Harvison-Young, who was to hear the motion, adjourned it to December 22, 2016 to give Mr. Sickinger "a last chance to comply with the outstanding court orders". He was, at the time, in serious default of his obligations to pay support and to make financial disclosure.

[8] On December 22, 2016, Mr. Sickinger yet again sought a further adjournment of his second motion to change. Justice Glustein adjourned the motion to February 28, 2017, making it 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 that no further affidavit material could be filed thereafter. Mr. Sickinger did not appeal this order.

[9] In spite of Justice Glustein's order, Mr. Sickinger late served a financial statement and 13 affidavits on Ms. Sickinger on January 17, 2017 (the January Affidavits). And on January 18th - the next day - he brought a Form 14B motion for leave for late service of his materials that were due on January 16, 2017 to reflect that service was completed on January 17, 2017. The Form 14B motion was scheduled to be heard on February 28, 2017 along with Mr. Sickinger's motion to change.

[10] On February 2, 2017 Mr. Sickinger's Form 14B motion to permit the admission of the January Affidavits was heard by Justice Corbett, who adjourned the motion to be heard orally by any judge. It was ultimately heard by the motion judge on Mr. Sickinger's motion to change on February 28th.

[11] On February 21, 2017, Mr. Sickinger purported to serve and file six affidavits in response to Mrs. Sickinger's affidavits (the "February Affidavits"). The February Affidavits were served and filed contrary to Justice Glustein's order that Mr. Sickinger did not have a further right of reply.

[12] Mr. Sickinger then filed a second 14B motion seeking an order that he be permitted the right of reply evidence. The February Affidavits did not contain Mr. Sickinger's income tax returns. This motion was also heard on the February 28, 2017 motion to change.

(2) The Motion Judge's Decision

(i) The Form 14B Motions

[13] On February 28, 2017, on the second motion to change hearing, the motion judge first heard Mr. Sickinger's Form 14B motions. In doing so, she assured the parties that she had read the February Affidavits:

I'm going to look at the materials, obviously, to decide whether or not I'm going to consider them in rendering my final decision on the motion, because there are two motions before me; not just the motion to change, but also this 14-B which has been ordered to be heard orally. I'm not saying I've decided the issue, but I'm going to certainly read the material with Justice Glustein's order in mind.

[14] The motion judge considered the order of December 22, 2016 by Glustein J. She noted that, pursuant to that order, the deadline to file any additional materials was on January 16, 2017, which included his 2015 and 2016 tax returns. She found that Mr. Sickinger had not complied with the order. Instead he late filed his material – which did not include his 2015 and 2016 tax returns – and commenced a 14B motion to extend the time to file. The motion judge accordingly, and on the same day she heard it, denied Mr. Sickinger's 14B motions. As a result, she concluded that any materials filed after that date would not form part of the motion to change and would be removed from the court file.

[15] Mr. Sickinger has not appealed the Form 14B motion decision.

(ii) The Second Motion to Change

[16] We note here that it is in connection with this second motion to change that Mr. Sickinger asks this court on appeal to first adduce his 2015 and 2016 tax returns as fresh evidence and reconsider the motion judge's decision in light of it. This is because, in part, in her March 6, 2017 endorsement, the motion judge found:

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. This should end the matter, but I will add the following.

[17] In any case, the motion judge dismissed Mr. Sickinger's motion to change because he had not produced any income tax returns and provided no valid reason for the lack of disclosure. While the motion judge found this lack of crucial disclosure to be dispositive of Mr. Sickinger's motion to change, as she indicated, she went on and made further observations and findings.

[18] Regarding the increase in the parenting time from 40% to 50%, the motion judge found this was foreseeable at the time of the Final Order. Thus, there was no material change in circumstances. Further, she was not convinced that the two older children had lived with Mr. Sickinger for the summer months as he alleged. And, on the issue of spousal support, she again found there was no material change.

[19] The motion judge granted Ms. Sickinger's motion to change. She found that Ms. Sickinger's financial situation had not changed, but Mr. Sickinger's had. There was no basis, therefore, to change Ms. Sickinger's imputed income in the circumstances. She found that Mr. Sickinger had not honoured his support obligations, and as a result, Ms. Sickinger has been unable to achieve self-sufficiency. She fixed Mr. Sickinger's arrears of child and spousal support at $83,544.

(3) The Appeal

[20] We will first address Mr. Sickinger's 2015 and 2016 tax returns he wishes to now file as fresh evidence. As we explain, we decline to admit it.

(i) The Fresh Evidence

[21] The proposed fresh evidence consists of Mr. Sickinger's 2015 and 2016 income tax returns. It does not include other evidence that was put before a panel of this court on February 1, 2018 on a review application by Mr. Sickinger to set aside the order of a single judge denying Mr Sickinger an extension of time to perfect his appeal. On that occasion it was expressly not considered by this court or Mr. Sickinger and his then counsel as a motion for fresh evidence. The review panel admitted the evidence on the review because Mr. Sickinger and his counsel were alleging ineffective assistance of Mr. Sickinger's previous counsel. It was relevant only to the test for extending time to perfect his appeal.

[22] For purposes of this appeal, the first time the tax returns were ever produced in court was on February 1, 2018 before the review panel.

[23] Mr. Sickinger's income tax returns were not included in any of the affidavits that were served, nor was there any reasonable explanation for their omission. Mr. Sickinger ignored disclosure orders for over two years. The first time his 2015 and 2016 income tax returns were produced was months after the motion judge's decision on his second motion to change. This was on November 9, 2017 when they were included in Mr. Sickinger's motion material to set aside or vary the order of a single judge of this court who refused to set aside the registrar's order dismissing his appeal.

[24] Mr. Sickinger's only explanation for the omission of his tax returns was to the panel of this court reviewing the refusal order of the single judge. In explaining why the tax returns were not put before the single judge, Mr. Sickinger and his then lawyer claimed ineffective assistance of previous counsel.

[25] And even that, he says, was on May 12, 2017, some three months after the hearing of his second motion to change. There was no explanation for the reason for their omission prior to that, especially in the face of judge's orders on August 15, 2016 and December 22, 2016, and their omission in his January and February 2017 affidavits.

[26] He claims explanations for his delay were provided in affidavits filed on his second motion for change, which the motion judge refused to admit. That of course is material included in his 14B motion, which was dismissed by the motion judge; a decision Mr. Sickinger has not appealed.

[27] For these reasons, we conclude that Mr. Sickinger has not met the test for introducing the proposed fresh evidence, namely, his 2015 and 2016 income tax returns. Accordingly, we will decide his appeal based only on the evidence that was before the motion judge.

(ii) The Analysis of the Appeal

[28] As it was with the motion judge, we believe the exclusion of the fresh evidence essentially disposes of the appeal. However, like the motion judge, we think it is appropriate to make some further comments.

[29] Although Mr. Sickinger has not appealed the Form 14B motion, he describes the reasons for the motion judge's dismissal of his motion to change as a result of his failure to provide his 2014 and 2015 Income Tax Returns and Notices of Assessment. As well, he asserts it was because he failed to provide evidence to justify the reduction of child support based on the 50/50 parenting. Finally, the motion judge found that his financial circumstances have not changed since the Final Order.

[30] The essence of Mr. Sickinger's arguments on appeal is that he was denied procedural fairness; first, because the motion judge prohibited him from filing his late filed January affidavits, although she allowed Ms. Sickinger to file her affidavits in response to them; and second, because she prohibited him from filing reply evidence. We reject this submission.

[31] First, as has already been noted, Mr. Sickinger has not appealed the motion judge's decision respecting his Form 14B motion. He was required to do so because this motion was independent from the motion to change and, as Corbett J. ordered, could be heard by "any judge".

[32] Nevertheless, contrary to what Mr. Sickinger asserts, the record shows that his late filed January Affidavits were before the motion judge and considered by her. Her comment in the oral endorsement: "As a result, any material filed after that date shall not be part of the motion to change before me today and shall be removed from the court file", clearly only refers to Mr. Sickinger's attempted reply evidence in his February Affidavits.

[33] The motion judge made no error in dismissing his motion to file reply evidence late and in non-compliance with a court order. The exercise of her discretion will not be interfered with by this court absent an error on her part, which Mr. Sickinger has not established.

[34] Second, the motion judge heard Mr. Sickinger's motion to change almost three years after he commenced it. At the time she heard the motion, seven different judges dealing with various aspects of the proceeding, including case management, had all ordered Mr. Sickinger to produce relevant disclosure. Indeed, some of this crucial disclosure is the subject of the fresh evidence motion on this appeal. Again, the first time this evidence was ever produced in court was on February 1, 2018.

[35] The record reveals that far from experiencing procedural unfairness, Mr. Sickinger has benefitted significantly from indulgences by the courts. This allegation by Mr. Sickinger is wholly without merit. As Ms. Sickinger's appeal counsel expressed it, "this is about Mr. Sickinger's continual failure to provide financial information; not procedural fairness". We agree.

[36] It is worth repeating that rules for disclosure and the sanctions for non-compliance are "the centrepiece of the Family Law Rules". As this court described it in Roberts v. Roberts, 2015 ONCA 450, at paras. 11-12:

The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled.

[37] As the history of this appeal illustrates, Mr. Sickinger has continually failed in his duty to disclose.

[38] Regarding the balance of Mr. Sickinger's grounds of appeal; again, we find them to be without merit. Specifically, his assertion that the motion judge erred in law when she found that, the increase in parenting at the time of the Final Order "was foreseeable" and therefore not a "material change", is rejected. When the motion judge's reasons are read as a whole and in context, it is abundantly clear that what she is saying is that it was contemplated. There was no error on her part.

[39] The motion judge appropriately made her decision based on the record before her. Mr. Sickinger has failed to establish any reason for this court to interfere with her comprehensively reasoned decision. There are no errors that Mr. Sickinger can identify that are sufficient to allow this court the right of appellate review.

(4) Disposition

[40] For the reasons given, the appeal is dismissed. As agreed, Ms. Sickinger is awarded her costs of the appeal in amount of $15,000 inclusive of disbursements and HST.

Released: June 8, 2018

"J.C. MacPherson J.A."

"H.S. LaForme J.A."

"L.B. Roberts J.A."