Court of Appeal for Ontario
Date: October 19, 2018 Docket: C65200
Feldman, Pepall and Pardu JJ.A.
Between
Margaret Kent Ainslie Applicant (Respondent in Appeal)
and
Kevin Phillip O'Neill Respondent (Appellant in Appeal)
Counsel
Robert Shawyer and Andrew Sudano, for the appellant
Margaret Kent Ainslie, in person
Caroline Brett and Jennifer Luong, for the intervenor the Attorney General of Ontario
Heard and released orally: October 19, 2018
On appeal from the order of Justice Kiteley of the Superior Court of Justice, dated March 1, 2018.
Reasons for Decision
[1] The appellant seeks to appeal the order of Kiteley J. dated March 1, 2018, which dismissed the appellant's motion for leave to bring a motion to change the final order of Harvison Young J., dated April 30, 2007, following a lengthy trial, with respect to child support, spousal support and s. 7 expenses.
[2] The order of Kiteley J. also stated that before the appellant brings any motion to change the final order, the appellant shall file proof with the court that he has complied with the judgment of Harvison Young J.
[3] The appellant seeks to argue on the appeal that the order of Kiteley J. was unconstitutional.
[4] The court raised with the parties by correspondence prior to the hearing whether the court could refuse to hear the appeal based on the Supreme Court of Canada decision in Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, where the court endorsed the dissenting reasons of Laskin J.A. in that case, and where the Supreme Court stated as follows in paras. 4 and 6 of its reasons:
Laskin J.A., in dissent, was of the view that the court had a discretion to refuse to entertain Dr. Dickie's appeal and that, based on the record showing continuing disobedience with court orders, it should have exercised that discretion. Hence, he would have adjourned Dr. Dickie's appeal until Dr. Dickie had taken steps to comply with the court orders below…
In our view, the Court of Appeal had the authority to refuse to entertain Dr. Dickie's appeal and, had it exercised its discretion as proposed by Laskin J.A. and for the reasons he gave, we would have found no basis to interfere with the result.
[5] At the opening of the hearing, this court invited submissions from the parties as to whether the Dickie case should apply, and whether the court should exercise its discretion not to hear the appeal while the appellant remains in default of payment of the amounts ordered in the April 2007 judgment.
[6] Counsel for the appellant submitted that this case should be distinguished from Dickie because the appellant has not been found in contempt. He also submitted that family law cases should be treated differently than commercial cases where there is default.
[7] In our view, this is a case where the principle in Dickie is particularly applicable. Most recently Curtis J., after a four day enforcement hearing, made the following finding at para. 76(a):
The payor a) has repeatedly and intentionally avoided his responsibilities towards his children and his former spouse, over a great many years. He has demonstrated a long-term, wilful and deliberate disregard for his obligation to comply with court orders.
[8] We have been advised today that the appellant has not complied with the order of Curtis J. following that hearing, the order being dated May 17, 2018.
[9] In light of the long and continuing pattern of wilful default, we decline to entertain this appeal at this time and stay the hearing of the appeal until the appellant complies with the order of Curtis J., dated May 17, 2018.
[10] We note that Curtis J. included a provision at para. 85(f) which states:
This order does not limit or restrict the Director in pursuing any other available enforcement remedies for the enforcement of the support arrears or the ongoing spousal support payments due under the order.
[11] That provision also remains in effect during the stay.
[12] We also order $700 costs payable to Ms. Ainslie, which will also be payable as a condition of lifting the stay.
K. Feldman J.A.
S.E. Pepall J.A.
G. Pardu J.A.