Court of Appeal for Ontario

Citation: Oelbaum v. Oelbaum, 2011 ONCA 300

Date: 20110418

Docket: C52784

Before: Cronk, Gillese and MacFarland JJ.A.

Between:

Barbara Ann Oelbaum

Applicant (Respondent)

and

Mark Oelbaum

Respondent (Appellant)

Counsel:

No one appearing for the appellant

Bohdan A. Shulakewych, for the respondent

Heard and released orally: April 14, 2011

On appeal from the order of Justice John C. Murray of the Superior Court of Justice dated September 8, 2010.

ENDORSEMENT

[1] Mr. Oelbaum did not appear today. Late last night he sent an email to the court offices in which he indicated that he would have problems attending today. However, on February 23, 2010, Moldaver J.A. dealt with Mr. Oelbaum’s earlier request for an adjournment. In granting that request, Moldaver J.A. made it abundantly clear that this appeal was to proceed today. In light of that, we accept the respondent’s submission that Mr. Oelbaum’s failure to attend today results in the appeal being dismissed as abandoned.

[2] In any event, we would have dismissed this appeal as an abuse of process. This appeal emerges from a protracted matrimonial dispute. The appellant’s answer was struck because he repeatedly refused, in the face of multiple court orders, to make financial disclosure. No appeal was taken from the order striking his answer. Three years later the matter proceeded to an uncontested trial at which the respondent was awarded substantial equalization and support payments.

[3] The appellant then moved before Murray J. for an order staying or setting aside the trial judgment and reinstating his answer. The motion was dismissed.

[4] In his lengthy, comprehensive reasons, the motion judge pointed to the appellant’s failures to: pay outstanding awards; make any effort to have his answer reinstated for a period of some three years; provide meaningful disclosure; respect court orders; and, appeal the order striking his answer. The motion judge also noted that the appellant offered no explanations for these failures. He found that he was unable to assess any possible prejudice to the appellant because of the appellant’s own failure to provide financial disclosure. He also noted that this was not a case where the appellant was denied a chance to present a defence on the merits; rather, it was the appellant who had intentionally failed to provide the necessary information to the court so that the court could fairly and expeditiously resolve the issues.

[5] Further, the motion judge found that there was no evidence of misleading or fraudulent tactics on the part of the respondent. Moreover, he found that the appellant had been “gaming the process” in order to prevent the respondent from receiving the financial support to which she was entitled.

[6] Just prior to the hearing of the motion, the appellant had paid a small part of the outstanding spousal support arrears. Apart from that, however, he has not paid any of the outstanding equalization, support or costs orders.

[7] In his factum on appeal, the appellant argued that the motion judge erred in not recognizing that the respondent displayed a lack of candour in the uncontested trial and in misapplying the law regarding the review of uncontested trials.

[8] The respondent submitted that this court should exercise its discretion and refuse to hear this appeal.

[9] We accept the respondent’s submission. In Dickie v. Dickie 2007 SCC 8, [2007], 1 S.C.R. 346, the Supreme Court of Canada affirmed the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach. This discretion is grounded in the inherent jurisdiction of the court to control its own processes and in s. 140(5) of the Courts of Justice Act, R.S.O. 1990 c. C.43, which gives the court express power to stay or dismiss a proceeding as an abuse of process.

[10] In any event, we see no merit in this appeal. The motion judge applied the correct legal principles and the record amply supports his findings. Had it been necessary to do so, therefore, we would also have dismissed the appeal on this basis.

[11] The respondent is entitled to her thrown away costs of this appeal, fixed in the amount of $20,000, inclusive of disbursements and all applicable taxes. These costs are to be treated as support for the purpose of enforcement.

“E. A. Cronk J.A.”

“E. E. Gillese J.A.”

“J. MacFarland J.A.”```