Court of Appeal for Ontario

Date: July 7, 2017

Docket: M47926, M47948 (C62422)

Panel: MacPherson, Cronk and Benotto JJ.A.

Between

Karina Cosentino Applicant (Respondent in Appeal)

and

Benito Cosentino Respondent (Appellant)

Counsel

J. Richard Forget for Benito Cosentino

Hugh M. Evans for Karina Cosentino

Heard: July 6, 2017

Reasons for Decision

[1] The parties are involved in an ongoing matrimonial dispute. They were married in 2001 and have two children, now ages 11 and 13.

[2] There was an order in the court below to bifurcate the custody and access issues from the financial matters. The financial matters were dealt with at a six-day trial held before Douglas J. On June 16, 2016, the trial judge made a final order that the husband pay the wife an equalization payment, child support and spousal support.

[3] The husband appealed the quantum of the equalization payment. The wife cross-appealed the quantum of child support.

[4] The wife now moves for an order dismissing the husband's appeal for non-payment of child and spousal support. In the alternative, if he is allowed to continue the appeal, she seeks to have certain case-management style conditions placed on him.

[5] On October 25, 2016, Lauwers J.A. heard a motion by the wife for partial payment of the equalization payment. At the return of the motion, however, the parties instead requested that "interim" child and spousal support payments be set, together with an expedited appeal. The husband's counsel proposed $1,412.00 per month and the wife's counsel agreed. Lauwers J.A. made the order and neither party has sought to review it.

[6] Lauwers J.A. also ordered that the appeal be expedited and heard in March 2017. March 2017 has come and gone and the appeal has not been perfected or heard. On March 29, 2017, Blair J.A., sitting in status court, commented that "little has been done" and he would consider placing the matter on the Purge Court list "to be considered for dismissal for delay".

[7] The husband has not complied with the order of Lauwers J.A. He has made only partial payments since February 2017. The wife seeks a dismissal of the appeal.

[8] This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders: see Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346; Nowacki v. Nowacki; Martyn v. Martyn, 2010 ONCA 730; Burley v. Burley, 2009 ONCA 2, 244 O.A.C. 198; and Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257.

[9] Here, it was the husband's counsel who – in order to avoid an order for partial payment of the equalization payment – proposed the amount of interim support, which the husband has since not paid.

[10] The husband's actions in failing to pay the interim child and spousal support and in not pursuing or perfecting the appeal on a timely basis disentitle him from continuing with this appeal.

[11] The wife's motion is allowed and the husband's appeal is dismissed with costs fixed at $3,750, inclusive of disbursements and HST. The costs may be enforced as part of support by the Family Responsibility Office.

[12] At the wife's request, her cross-appeal is correspondingly dismissed without costs.

"J.C. MacPherson J.A."

"E.A. Cronk J.A."

"M.L. Benotto J.A."