Ablett v. Horzempa, 2011 ONCA 633

CITATION: Ablett v. Horzempa, 2011 ONCA 633

DATE: 20111011

DOCKET: C53474 & C53475

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (ad hoc)

BETWEEN:

Brian Robert Ablett

Moving Party (Respondent)

and

Mary Margaret Horzempa

Respondent (Applicant)

Brian Robert Ablett, in person

Daniela Bertossi, for the Ministry of Community Services Director Christine Ziedins and Keith Taller, for the Family Responsibility Office Mary Margaret Horzempa, in person

Heard: September 28, 2011

On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice dated March 2, 2011 and the order of Justice Margaret P. Eberhart of the Superior Court of Justice dated March 7, 2011.

ENDORSEMENT

[1] These appeals arise from a protracted family law dispute. The first appeal is from an order striking the appellant’s pleadings and dismissing the appellant’s motion to change a final order for spousal support. The second appeal is from an enforcement order pursuant to the Family Responsibility and Support Arrears Enforcement Act for payment of support arrears.

[2] In his submissions before us, the appellant essentially attempted to re-litigate the entire dispute with his former common-law partner. The appellant’s position is that he never had his day in court because of the order striking his pleadings on the grounds that he failed to comply with the support orders, failed to pay costs and failed to make adequate disclosure. He insists that, contrary to the findings of the judges hearing the motions for interim and final support, the period of cohabitation was insufficient to justify a support order. Moreover, the appellant asserts that he lacks the means to pay the support that has been ordered because he filed for bankruptcy in 2008 and remains an undischarged bankrupt.

[3] There is no basis for us to review or alter any of the outstanding orders or judgments apart from the two orders under appeal. The appellant did not appeal the order for interim support and while he filed a notice of appeal against the order for final support, he did not proceed with that appeal and it was dismissed. The two appeals before us do not provide the appellant with an avenue to collaterally appeal or attack the support orders.

MOTION TO INTRODUCE FRESH EVIDENCE

[4] The appellant also moves to introduce as fresh evidence on appeal an affidavit and other material that essentially relates to, and attempts to explain, aspects of the protracted matrimonial proceedings between these parties.

[5] The motion to introduce fresh evidence is dismissed. The evidence proffered does not satisfy the test for admission of fresh evidence on appeal. The evidence consists of material that was available at the time the two orders under appeal were heard. It relates to earlier proceedings and has no direct relevance for bearing on these appeals and is proffered as part of the appellants’ effort to re-litigate issues and orders that are not subject to the present appeals.

GROUNDS OF APPEAL

Dismissal of motion to vary support

[6] The appellant failed to persuade us that the motion judge erred in refusing his last-minute request for an adjournment, striking his pleadings and dismissing his motion to vary the support order. The motion judge found that the appellant failed to demonstrate that he could not satisfy the various costs orders made against them in the proceedings and noted that he had failed to appeal those costs orders. The motion judge clearly recognized the importance of allowing parties to present their case and advance their position. He also recognized that striking a pleading is a remedy of last resort. The motion judge concluded, however, that striking the appellant’s pleadings was appropriate because of the appellant’s “wanton noncompliance with court orders” and his “egregious” behaviour in attempting to escape the reach of the court. The motion judge observed that in the face of this “mountain of historical non-compliance,” the appellant had made “absolutely no attempt to bring himself into compliance, or to adequately explain non-compliance.”

[7] Striking a pleading and denying party the right to be heard on a motion is a drastic remedy of last resort. We are satisfied, however, that the record in this case provided a sufficient basis upon which the motion judge could exercise his discretion. The record demonstrates a consistent and unyielding pattern of noncompliance with court orders and a total disregard for the process of the court on the part of the appellant. The appellant frequently used appeals as an instrument of delay; appeals were brought to buy time but then not pursued. We reject the appellant’s contention that he has been improperly or unfairly denied his day in court. He refused to follow the rules or to obey the orders of the court. In so doing, he chose not to avail himself of the numerous opportunities for meaningful participation that the ordinary process provides. In these circumstances we cannot say that the motion judge erred by striking his pleadings and dismissing his motion.

Enforcement order

[8] We do not see any error on the part of the judge who made the enforcement order at the request of the Family Responsibility Office. The appellant had been given several adjournments to prepare his case and the judge did not err in refusing yet another adjournment. The appellant was not denied his day in court. He failed to avail himself of the procedural rights accorded by the Family Responsibility and Support Arrears Enforcement Act, including the right pursuant to s. 41(9) to demonstrate his inability to satisfy the support order.

Judicial bias

[9] Finally, we see no merit in the appellant’s allegations of judicial bias. No doubt, through his repeated noncompliance with court orders, the appellant attracted disfavour from the judges of the Family Court. Disfavour so provoked, however, does not amount to judicial bias.

Conclusion

[10] At the end of the day, we are satisfied that the appellant is the author of his own misfortune. He has only been deprived of the right to fully participate in the proceedings because of his own failure to comply with court orders and to respect the Rules of Court and the deadlines they impose.

[11] Accordingly, the appeals are dismissed.

[12] If the respondents seek costs we will receive brief written submissions.

“W. Winkler C.J.O.”

“Robert J. Sharpe J.A.”

“J.D. Cunningham A.C.J. (ad hoc)”