COURT OF APPEAL FOR ONTARIO

CITATION: Howard v. Martin, 2014 ONCA 309

DATE: 20140417

DOCKET: M43502

Gillese J.A. (In Chambers)

BETWEEN

Jane Howard

Applicant (Respondent)

and

Anthony Michael Martin

Respondent (Applicant)

Michael Stangarone, for the applicant

E.L. Nakonechny, for the respondent

Heard: April 15, 2014

Application for an extension of time in which to appeal from the order of Justice Victor Paisley of the Superior Court of Justice, dated February 25, 2013, and the orders of Justice Peter G. Jarvis of the Superior Court of Justice, dated June 24, 2013, and January 8, 2014.

Gillese J.A.:

[1] Anthony Michael Martin moves for an extension of time to file his notice of appeal of the order of Paisley J., dated February 25, 2013 (the “Paisley Order”) and the orders of Jarvis J., dated June 24, 2013 (the “Jarvis Order”), and January 8, 2014 (the “Costs Order”).

[2] Jane Howard, his former spouse, opposes the motion.

[3] For the reasons that follow, the motion is dismissed.

BACKGROUND IN BRIEF

The Paisley Order

[4] Ms. Howard brought an application for a divorce, and associated relief, in June 2012. The application was uncontested and resulted in the Paisley Order.

[5] Two terms of the Paisley Order are relevant to this motion. The first is that Mr. Martin and Ms. Howard are to share equally in their two children’s special and extraordinary expenses. The second gave Mr. Martin the right to retain the matrimonial home, provided that he made a specified payment to Ms. Martin. The payment included a sum for equalization plus an adjustment to reimburse Ms. Martin for 50% of the increase in the parties’ joint line of credit that Mr. Martin had unilaterally made during the marriage. The Paisley Order provided that if Mr. Martin failed to make the payment, the home would be listed for sale and sold by March 1, 2013.

[6] It is important, for the purposes of this motion, to understand why the application before Paisley J. proceeded on an uncontested basis.

[7] In June 2011, Ms. Howard’s lawyer wrote to Mr. Martin, suggesting that he retain counsel, provide his financial disclosure, and begin negotiation of a separation agreement.

[8] In September 2011, she served him with Ms. Howard’s sworn financial statement and a disclosure brief.

[9] After these and other unsuccessful attempts to obtain financial disclosure, Ms. Howard initiated the court proceeding in June of 2012.

[10] Mr. Martin ignored the 30-day deadline to provide responding materials after being served with Ms. Howard’s application.

[11] On September 14, 2012, Penny J. ordered Mr. Martin to:

• serve and file his sworn financial statement and specific financial documentation by September 24, 2012;

• serve and file his answer on or before 5:00 p.m. on September 28, 2012; and

• pay costs of $500.

[12] The order also provided that if Mr. Martin failed to comply with it, Ms. Howard could proceed to an uncontested trial of the issues.

[13] This order was made on consent. However, Mr. Martin failed to comply with it. He did not produce pay stubs, relevant bank statements, Visa statements, mortgage statements, or evidence of income tax arrears. He also failed to file his answer on time. His cheque for the costs bounced.

[14] At a case conference held on October 12, 2012, Mesbur J. gave Mr. Martin another chance. She ordered him to “comply strictly” with Penny J.’s order by noon on October 26, 2012, failing which Ms. Howard could proceed with an uncontested trial.

[15] Mr. Martin failed to comply with Mesbur J.’s order. A few hours after the deadline, he delivered some material, much of which simply duplicated that previously provided. He did deliver a financial statement, purportedly sworn in front of a commissioner for oaths. However, the commissioner’s “signature” was an illegible star-shaped scribble and the name of the commissioner was not printed underneath.

[16] As a result of Mr. Martin’s failure to comply, the application before Paisley J. proceeded on an uncontested basis.

The Jarvis and Costs Orders

[17] Mr. Martin moved to set aside the Paisley Order on essentially the same grounds as he seeks to raise on appeal.

[18] Justice Jarvis found that Mr. Martin’s health problems and alleged lack of financial resources did not justify his failure to comply with the various court orders and, in any event, ought to have been raised earlier in the proceedings. In his view, Mr. Martin’s arguments about Paisley J.’s treatment of the value of the matrimonial home amounted to an assertion that he would have raised other facts and made other arguments had he been able to participate before Paisley J. However, the evidence was available and known to Mr. Martin before that hearing, and it was his failure to comply with court orders that led to his inability to participate.

[19] The Jarvis Order, dated June 24, 2013, dismissed the motion. The Costs Order required Mr. Martin to pay costs of $10,321.31.

After the Paisley Order

[20] The Paisley Order enabled Mr. Martin to stay in the matrimonial home, if he made the specified payment to Ms. Martin. He did not make the payment. Thus, in accordance with the terms of the Paisley Order, the house was to be listed for sale.

[21] Mr. Martin refused to list the house for sale.

[22] Ms. Howard was forced to bring a motion in September 2013 so that the house could be sold (the “sale order”). Contrary to the terms of the sale order, Mr. Martin failed to keep the house “clean and presentable for all showings”. Ms. Howard, along with six of her family members and friends, worked for about 200 hours to clean and repair the house for showings. She also incurred costs of approximately $1,770 to make it presentable.

[23] Mr. Martin also breached the sale order by failing to vacate the home on December 6, 2013.

[24] Ms. Howard had to spend additional legal fees to arrange for the Sheriff to remove Mr. Martin before the closing. At that point it was discovered that Mr. Martin had failed to leave the property “in broom swept condition”, contrary to the terms of the sale order. Ms. Howard spent an additional $1400 and she and her crew of family and friends spent another four days cleaning the house, to ensure that the house was in a state to close.

[25] Mr. Martin has also failed to comply with four separate costs orders, totalling over $20,000, and continues to be in breach of the Paisley Order requiring him to pay one-half of the children’s extraordinary expenses. While he has provided some cheques towards these costs, most of them have bounced.

THE TEST FOR EXTENDING TIME

[26] The test on a motion to extend time for filing a notice of appeal is well-settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

1. whether the moving party formed a bona fide intention to appeal within the relevant period;

2. the length of, and explanation for, the delay in filing;

3. any prejudice to the responding party that is caused, perpetuated or exacerbated by the delay; and,

4. the merits of the proposed appeal.

See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15, and Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 16.

APPLICATION OF THE TEST

1. Intent to appeal

[27] I accept, for the purposes of this motion, that Mr. Martin had the requisite intention.

2. Length of, and explanation for, the delay

[28] The Paisley Order is dated February 25, 2013. Mr. Martin moved to have the Paisley Order set aside. The Jarvis Order dismissed that motion on June 24, 2013. Mr. Martin did not attempt to file his notice of appeal until February 27, 2014, some eight months after the Jarvis Order was made.

[29] Mr. Martin offers two explanations for the delay in filing, following the Jarvis Order: health problems and lack of legal representation.

[30] In my view, neither adequately explains the delay.

[31] Mr. Martin suffers from chronic pain syndrome and sometimes has difficulty concentrating. These difficulties are not new, as he had them throughout these proceedings. The record shows that they did not interfere with Mr. Martin’s ability to engage in the litigation process. Moreover, the record shows that Mr. Martin has continued to work throughout as a business writer, speaker and educator, and that he has led an active social life. I do not doubt that the medications and other treatments he receives are of assistance to him. I simply note that his medical problems do not excuse or explain his failure to file in a timely fashion.

[32] As for the absence of legal representation, there is no evidence that Mr. Martin lacked the resources to retain counsel to help him with this appeal. At various times throughout these proceedings, including this motion, he has had counsel.

3. Prejudice to the responding party

[33] It is an unfortunate reality that a respondent will often suffer some degree of emotional and financial stress when an appeal is delayed. In this case, however, the ramifications for Ms. Howard’s health go well beyond the norm and amount to prejudice.

[34] Ms. Howard suffers from Type I diabetes, an irregular heartbeat, and Graves’ disease. She must inject herself with insulin at least five times a day. The medical evidence makes it clear that prolonging this litigation will impact negatively on her health. Her family physician, Dr. S. Friedman, advises that the ability to manage Ms. Howard’s health problems and get her blood sugars into the recommended range is not possible when she is under extreme stress, such as that which is caused, or contributed to, by this litigation. Dr. Friedman goes on to identify the long term consequences of poorly managed diabetes, which include kidney failure, heart disease, peripheral vascular disease, visual impairment, and increased susceptibility to infection.

[35] Dr. Friedman has also recently advised Ms. Howard to work only part time, as opposed to full time. Ms. Howard is unable to follow that advice because of financial pressures.

4. Merits of the proposed appeal

[36] The merits of a proposed appeal can be decisive on a motion to extend the time for filing. Even if the other factors militate against extending time, the merits may be so significant as to justify extending time.

[37] That is not this case.

a. The Children’s Interests

[38] The first proposed ground of appeal is that Paisley J. failed to consider the children’s best interests when he ordered that the matrimonial home be sold. This ground has no merit.

[39] It will be recalled that the Paisley Order permitted Mr. Martin to retain the matrimonial home. However, he did not make the required payment with the result that the home was sold. Thus, if it was in the children’s best interests that they remain in the home, the reason they could not was his actions and not an error in the Paisley Order.

[40] I note that if the children’s best interests were served by remaining in the same neighborhood as the matrimonial home, that was achieved because Ms. Howard obtained rental accommodation for herself and the children very close to the matrimonial home.

b. The line of credit

[41] The second proposed ground of appeal pertains to the line of credit. Mr. Martin says that he used the money in question to pay family expenses and that Paisley J. erred by finding otherwise.

[42] This is a question of fact: did Mr. Martin use the money from the line of credit for his own purposes or for the family? As a question of fact, it is reviewable on the standard of palpable and overriding error. There is nothing in the materials before me to indicate any such error. On the contrary, the record overwhelmingly supports Paisley J.’s conclusion that Mr. Martin used the funds from the line of credit for his own purposes. A very brief review of key facts will demonstrate this.

[43] In November 2012, while this litigation was ongoing, Ms. Howard went to her bank to obtain copies of documents related to the parties’ joint line of credit. She learned that in August 2007, Mr. Martin had forged her signature on bank and real estate documents to obtain an increase in the joint line of credit secured against the matrimonial home, from $175,000 to $373,607. Mr. Martin then proceeded to take advances on that increased line of credit, beginning the following day when he transferred $60,000 to a TD Waterhouse account and purchased shares in four mining and mineral stocks totalling $74,326.20. Those investments did not exist at the date of separation.

[44] There is nothing in this proposed ground of appeal.

c. Value of the matrimonial Home

[45] The third proposed ground of appeal pertains to the matrimonial home.

[46] Justice Paisley valued the matrimonial home at $737,000. He had before him Ms. Howard’s material which contained the opinions of two real estate agents, employed by different companies, as to the value of the home as of March 1, 2011. The house sold for $727,500.

[47] Mr. Martin claims that Paisley J. should have used a value of $655,000 for the matrimonial home. To the extent his claim is based on an appraisal that he had prepared on December 13, 2013 – ten months after the Paisley Order, and five months after the Jarvis Order – I see nothing in it. As fresh evidence, it is not clear to me that it would be admitted if the appeal were to be permitted to proceed. Setting that to the side, however, Mr. Martin has pointed to no error in Paisley J. relying on the evidence before him. The fact that Mr. Martin disagrees with the estimate and the fact that the home ultimately sold (subsequent to the Paisley Order) for a slightly lower price than the estimate does not make it a mistake for Paisley J. to have relied on the estimate.

[48] Mr. Martin also claims that Paisley J. used an inflated value for the home because he brought the home to the marriage, therefore any increase in its value after the date of separation until the point of sale should have accrued solely to his benefit.

[49] While I cannot say that there is no merit whatsoever in this claim, it is very tenuous indeed. Ms. Howard put a very complete record before Paisley J., which included a 262 page affidavit. The values in her Net Family Property Statement were all supported by documentary evidence. The materials disclosed the facts upon which Mr. Martin relies for this claim. If Paisley J. had any concerns about how to fairly treat the matrimonial home, he had methods for exploring those concerns. He invoked none of them. Further, this claim ignores any right that Ms. Howard might claim based on constructive trust principles.

[50] Accordingly, I see very little prospect of success on this issue. I note also that the dollar amount in question is small, particularly when viewed against all the outstanding amounts that Mr. Martin owes Ms. Howard.

The overall justice of the case

[51] In my view, the overall justice of the case dictates that no extension of time should be granted.

[52] As I have explained, there is no adequate explanation for the delay in filing the notice of appeal; an appeal would result in serious prejudice to Ms. Howard’s health; and the sole arguable ground of appeal is for a small sum and unlikely to succeed. To these factors, I would add the following two considerations.

[53] First, it is Mr. Martin’s own misconduct that resulted in the application before Paisley J. proceeding on an uncontested basis. He was given a number of chances to obey the court disclosure orders and warned of the consequences of the failure to comply. Despite that, he did not comply with those orders. In the circumstances of this case, it would be contrary to the interests of justice to effectively undo the order precluding him from participating in the proceedings by now granting leave.

[54] Second, Mr. Martin is asking this court for an indulgence. When a person asks the court for an indulgence, it is appropriate to consider whether that person has respected prior court orders. Mr. Martin has not demonstrated that respect. On the contrary, as the brief recounting of events above shows, Mr. Martin has a history of repeatedly failing to comply with court orders and he continues to flout them to this day.

DISPOSITION

[55] Accordingly, the motion is dismissed with costs to the responding party, fixed at 5,000, inclusive of disbursements and all applicable taxes.

Released: