COURT OF APPEAL FOR ONTARIO

CITATION: Schwilgin v. Szivy, 2015 ONCA 816

DATE: 2015-11-24

DOCKET: M45679

Brown J.A. (In Chambers)

BETWEEN

Laszlo Schwilgin

Moving Party

and

Lori Anne Szivy

Responding Party

Counsel:

Laszlo Schwilgin, acting in person

Fredrick Schumann, appearing as duty counsel

No one appearing for the responding party

Heard: November 19, 2015

ENDORSEMENT

OVERVIEW

[1] Laszlo Schwilgin moves for an extension of the time in which to file a notice of appeal from the May 20, 2014 order of Backhouse J. The lengthy history of this matrimonial litigation is set out in the May 20, 2010 reasons of Métivier J. (2010 ONSC 2857), the reasons of Backhouse J., and the July 2, 2015 reasons of the Divisional Court (2015 ONSC 4292).

[2] At the motion to extend the time to appeal, Mr. Schwilgin appeared in person and was assisted by duty counsel. Ms. Szivy served and filed responding materials, but advised the court she could not afford to travel down from Ottawa for the motion. She asked the court to consider her written materials. I have done so.

[3] Mr. Schwilgin and Ms. Szivy separated in 2002. They have two children: Alexander, who is now 18 years old and suffers from autism, and Jennifer, who is 17 years old. Prior to July 2013, the children lived with their mother in Ottawa. Since then, they have resided with their father, most recently in Toronto.

[4] After the children began to live with him, Mr. Schwilgin brought a motion to vary the child support obligations then in force. That motion resulted in the May 20, 2014 order of the motion judge. Mr. Schwilgin contends the motion judge made several errors in dismissing most of his motion to vary: she failed to relieve him of $75,000 in accumulated child support arrears that date back to at least 2006; she erred in the level of child support she ordered Ms. Szivy to pay on a go-forward basis; and she erred in holding that the child support payments to be made by Ms. Szivy be treated as an offset against the arrears owed by Mr. Schwilgin.

[5] For the reasons set out below, I dismiss Mr. Schwilgin’s motion for an extension of time to file a notice of appeal.

ANALYSIS

[6] The factors a court must take into account in considering a motion to extend the time to file a notice of appeal are set out in Kefeli v. Centennial College of Applied Arts and Technology (2002), 23 C.P.C. (5th) 35 (Ont. C.A.).

Intention to Appeal and Explanation for Delay

[7] Although I am satisfied that Mr. Schwilgin formed an intention to appeal within the relevant time, I do not accept as reasonable his explanation for the delay in seeking to appeal to this court.

[8] Mr. Schwilgin stated that he had filed a notice of appeal from the order of the motion judge within 30 days of the date of the order. However, he filed the appeal with the Divisional Court. That court quashed his appeal in July 2015 on the ground that it lacked jurisdiction because his claim to rescind arrears that was dismissed by the motion judge exceeded $50,000.

[9] Mr. Schwilgin deposed that he appealed to the Divisional Court as a result of a mistake he made as a lay person. In assessing that assertion, I must take into account two other factors. First, in her 2010 reasons Métivier J. described Mr. Schwilgin as a “talented and experienced computer engineer.” He is a person of some sophistication. Second, I asked Mr. Schwilgin whether opposing counsel had told him his appeal to the Divisional Court was made to the wrong court. Mr. Schwilgin confirmed that he had been put on notice he was appealing to the wrong court. He persisted nonetheless. The Divisional Court addressed his conduct in para. 6 of its July 2015 reasons when it stated:

In this case the issue of jurisdiction was raised by the respondent in August 2014. The appellant did not move expeditiously to bring his appeal in the proper forum. In this regard we do not accept that the respondent’s failure to consent to the transferring of this appeal is a satisfactory explanation for the appellant’s failure to move with expedition to ensure that this appeal was brought in the proper forum.

[10] The Divisional Court declined to exercise its discretion to transfer Mr. Schwilgin’s appeal to this court. Mr. Schwilgin thereupon applied to this court for an extension of time to seek leave to appeal from the Divisional Court’s order. On August 21, 2015, Juriansz J.A. dismissed that motion, stating: “It is apparent to me that the proposed leave application is devoid of merit.”

[11] Given that procedural history, I am not satisfied that Mr. Schwilgin has provided an adequate explanation for his lengthy delay in seeking to appeal to this court. This weighs very heavily against granting his motion for an extension of time to appeal.

Merits of the Appeal

[12] I am not persuaded on the evidence before me that there is merit in Mr. Schwilgin’s appeal. He did not file a draft notice of appeal with his motion, so there is no concise identification of the errors he contends the motion judge made. However, from his materials and submissions made at the motion, it is apparent that the primary argument Mr. Schwilgin wants to advance on an appeal is that the motion judge erred in not re-considering his financial ability to pay child support going back to 2006, when Mr. Schwilgin consented to the imputation of a certain income level to him. Had she done so, according to Mr. Schwilgin, his child support arrears would have been eliminated.

[13] In support of his position, Mr. Schwilgin relies heavily on the decision of this court in Difrancesco v. Couto (2001), 2001 CanLII 8613 (ON CA), 56 O.R. (3d) 363 (C.A.), which identified the factors to be taken into account in any decision to rescind child support arrears. In that case, this court stated, at para. 26, that the dismissal of an application to rescind arrears is not an absolute bar to a future rescission of those same arrears provided there is a change in circumstances sufficient to warrant a variation in child support obligations.

[14] In my view, Mr. Schwilgin’s proposed argument that the motion judge erred in refusing to rescind his child support arrears faces two very significant difficulties. First, in 2008 Mr. Schwilgin moved to vary the 2006 consent child support order to reduce his child support obligations from $1,215 to $400 and to rescind all child support arrears. The court dismissed his motion. He brought a second variation motion in 2010 for similar relief, although that time for the elimination of any child support obligation, as well as the rescission of all arrears. Métivier J. dismissed that motion, noting that Mr. Schwilgin had stopped paying the support to which he had consented.

[15] Métivier J. conducted a lengthy review of Mr. Schwilgin’s employment history and earnings, going back to 2001, the year prior to the parties’ separation. At para. 16 of her reasons she stated: “Mr. Schwilgin has claimed before each judge since 2002 that he is unemployed and looking for employment.” As noted, she found that Mr. Schwilgin “is a talented and experienced computer engineer.” Métivier J. concluded, at para. 34, that there had been no material change in Mr. Schwilgin’s financial circumstances since the 2006 consent order, and “[h]e is, in my view, determinedly and deliberately under-employed for his own purposes.”

[16] Mr. Schwilgin advised that the Divisional Court had dismissed his appeal from the order of Métivier J. (2011 ONSC 5918). In the circumstances of this case, that dismissal of his appeal would foreclose, for all practical purposes, any re-examination of Mr. Schwilgin’s financial circumstances prior to 2010. He acknowledged that if his pre-2010 arrears were not changed, any reduction in post-2010 child support arrears would not bring his child support arrears down to zero, but would still leave him liable for somewhere between $20,000 and $40,000 in arrears.

[17] A second weakness exists in Mr. Schwilgin’s proposed argument on appeal. By the time of Mr. Schwilgin’s 2014 variation motion, a material change in circumstances had occurred – since July 2013 Mr. Schwilgin had been the custodial parent. The motion judge varied the parties’ child support obligations in light of that material change in circumstances, terminating Mr. Schwilgin’s child support obligations and imposing support obligations on Ms. Szivy.

[18] In respect of Mr. Schwilgin’s request to rescind his child support arrears, the motion judge informed herself about the principles stated by this court in the Difrancesco case: at para. 3. However, she found that there had been no change in Mr. Schwilgin’s financial circumstances or ability to pay child support since the 2010 decision of Métivier J. Based on her review of the evidence, the motion judge concluded, at para. 7, that “Mr. Schwilgin has gone to great lengths either to conceal his true income or to be deliberately underemployed in order to avoid his support obligations.” Her conclusion echoed that made four years earlier by Métivier J.

[19] Mr. Schwilgin obviously disagrees with that conclusion. But, nothing in the three substantive affidavits he filed on this motion – September 28, 2015, October 19, 2015 and the fresh evidence affidavit of November 13, 2015 – would indicate the motion judge made any palpable and overriding error in reaching her conclusion that no material change had occurred in Mr. Schwilgin’s financial circumstances since 2010.

[20] Consequently, I conclude that there is little, if any, merit to Mr. Schwilgin’s appeal.

Prejudice to the Respondent and Whether the Justice of the Case Requires Granting the Motion

[21] Finally, I am not satisfied that the justice of the case supports granting the motion to extend. In quashing his appeal from the order of the motion judge, the Divisional Court ordered Mr. Schwilgin to pay Ms. Szivy costs of $10,000. He has not done so. In open court, Mr. Schwilgin said he would not pay those costs because he contends he lacks the resources to pay them.

[22] In her affidavit on the motion, Ms. Szivy deposed that Mr. Schwilgin owes her over $25,000 in costs from their matrimonial proceedings. In her letter of November 16, 2015 transmitting her responding materials to the court, Ms. Szivy wrote:

I do not understand how Mr. Schwilgin is permitted to constantly bring motions and appeals without paying the costs of previous court orders. It seems all the court does is order more costs, which I cannot collect. He gets stern words and a slap on the wrist (costs), and I get a bill from my lawyer. How is this fair?

[23] That is a most legitimate question to ask. Courts usually talk in terms of prejudice which cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.

[24] In this case, Mr. Schwilgin has not paid the costs ordered by the Divisional Court. This court dismissed his motion for leave to appeal that decision. In para. 7 of its reasons, the Divisional Court stated:

The appellant has used this appeal as a means of delaying paying the arrears in question and the costs ordered to the respondent. Further, the appellant has a history of using Court proceedings in this way. This has caused the respondent considerable prejudice.

[25] In my view, to grant Mr. Schwilgin’s motion would cause further prejudice to Ms. Szivy, prejudice which a cost award obviously could not compensate because Mr. Schwilgin will not pay it. The justice of the case favours dismissing Mr. Schwilgin’s motion.

DISPOSITION

[26] Looking at these factors in their totality and considering the overall justice of the case, I dismiss Mr. Schwilgin’s motion to extend the time to appeal.

[27] Ms. Szivy states she has incurred $1,000 in costs to respond to the motion. I order Mr. Schwilgin to pay Ms. Szivy those costs in the amount of $1,000 no later than Friday, December 4, 2015.

[28] Finally, the day following the hearing of the motion, Mr. Schwilgin filed with the court a letter to my attention setting out further arguments. It was improper for Mr. Schwilgin to communicate with the court in that fashion. In any event, I read his letter; it contained nothing of relevance. I therefore have not taken its contents into account in disposing of his motion.

“David Brown J.A.”