Court of Appeal for Ontario

Citation: Stetler v. Stetler, 2013 ONCA 508

Date: 2013-08-02

Docket: M42695 (C55957)

Before: Lauwers J.A. (In Chambers)

Between:

Dudley Wyatt Herbert Stetler Appellant (Responding Party)

and

Connie Christine Stetler Respondent (Moving Party)

Counsel: Paul D. Amey, for the moving party Dudley Stetler, acting in person Eric Morgan, as amicus curiae

Heard: July 31, 2013

On a motion for security for costs on an appeal from the order of Justice Patrick J. Flynn of the Superior Court of Justice, dated August 3, 2012, which is reported at 2012 ONSC 4466.

Endorsement

[1] This is a motion by the respondent/moving party for an order under r. 61.06(1) of the Rules of Civil Procedure for security for the costs of this appeal.

[2] When this motion was called for submissions, Amicus requested an adjournment on the basis that Mr. Stetler had had an inadequate amount of time to prepare. Counsel for the moving party advised the court that he had served virtually the same material on Mr. Stetler in May, 2013 and that he had also advised Mr. Stetler on July 24, 2013 that he would not agree to an adjournment. Mr. Stetler filed a significant responding material and factum, and was prepared to argue. I refused the adjournment. As it turned out, Mr. Stetler knew the material and was both articulate and well-spoken.

[3] The trial judge maintained the status quo in terms of custody and access. He ordered the appellant to pay to the respondent an equalization payment of $75,000, child support for two children in the total amount of $555 per month, and costs in the amount of $32,000. The appellant is now in arrears of child support in an amount close to $10,000.

[4] The moving party submits that the appeal is frivolous and vexatious. On the issue of custody and access, the appellant sought week-about access. The trial judge continued the status quo. The appellant complains that the trial judge gave no weight to the report of Paul Ricketts, a social worker whose report was in the continuing record. Counsel for the moving party points out that the report was not filed in evidence at the trial and that Mr. Ricketts was not called as a witness. The appellant complains that his trial counsel failed to get the report into evidence as he instructed, and also failed to ensure that an alternate access schedule that would include shared holiday access was not put forward. These are not valid grounds of appeal.

[5] With respect to child support, the appellant asserts that he is paying to the full extent possible given his bleak financial circumstances, which the trial judge failed to take into account. The appellant entered into an arrangement with the Family Responsibility Office only recently in which he has agreed to the required monthly payment and to pay an additional $100 per month towards the arrears. This is plainly not a particularly robust effort to deal with child support arrears.

[6] The issue of the appellant’s true income occupied much trial time. An understandably frustrated trial judge was driven to impute an income to the appellant. At para. 27, the trial judge said:

I have not had the help of any expert witness but it seems to me that through two separate divorce proceedings, this man's character is defined. He will not tell the court what his income is and defies us to guess. He is not cooperating at all, nor is he following his duty at law to provide us with updated financial information. Moreover, I must draw an adverse inference from his failure to call his sister (the accountant) and his father who could have corroborated his evidence or given us the truth with respect to the amount of money that his father has paid him and whether or not he intends to collect on his mortgage debt. While there is no scientific reason to do this, I prefer to impute income of $36,000 per annum to the Applicant. He refused to help himself out or prove me wrong and it is his obligation to demonstrate what his income is. Moreover, he is about to take over the farm from his 75 year old father and there is no evidence of any physical or mental impairment to his working full-time and earning a decent living. In fact, he runs a small construction concern, receiving income, some of which he didn't declare.

[7] The trial judge imputed an income of $36,000 per year to the appellant on the basis he had been working on his father’s farm full-time and did not call his father, Wyatt Stetler, as a corroborating witness concerning his income.

[8] With respect to the equalization payment, the moving party asserts that the only issue with respect to the valuation of the matrimonial home was how to account the $38,500 second mortgage in favour of the appellant’s father that was placed on the matrimonial home on June 1, 1999. The trial judge found that the appellant had paid nothing on the mortgage in 13 years and that there had been no demand for payment to date by his father. While the appellant testified that he intended to repay the mortgage, the respondent testified to the contrary. Again Wyatt Stetler was not called to give evidence although he was present in the court house. The trial judge drew an adverse inference against the appellant because of that failure to testify. In consequence, the trial judge discounted the amount of mortgage to nil in fixing the appropriate equalization payment.

[9] The appellant also argued that counsel for the moving party had a conflict of interest because he acted for Wyatt Stetler in his matrimonial proceedings in the 1980s. This issue was not raised at any time before the appearance before me. Mr. Stetler claimed that he had tried to get his counsel to raise the issue but his counsel refused. This submission does not relate to the merits of the appeal.

[10] The moving party submits that there is no evidence that the appellant owns assets capable of answering a costs award of this court, given the value of the matrimonial home less the various charges now registered against it. There is no equity in the home if the interests of Wyatt Stetler in two mortgages plus interest in the home are fully factored in.

[11] Consistent with the authority of this court in Schmidt v. The Toronto Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1, in my view, the moving party has demonstrated my satisfaction that there is good reason to believe that the appeal has no merit. The appellant’s litigation posture has been and continues to be recalcitrant. The moving party has also demonstrated that there appears to be good reason to believe that the appellant has insufficient assets in Ontario to pay the costs of the appeal.

[12] The moving party seeks $12,000 in security for costs. I order the appellant to deposit $8,500 to the credit of this appeal with the court no later than September 15, 2013, failing which the appeal will be dismissed.

“P. Lauwers J.A.”