Court of Appeal for Ontario
Date: 2018-11-15 Docket: C64617
Judges: Watt, Miller and Nordheimer JJ.A.
Parties
Between
Dominic Vito Vetro Applicant (Appellant)
and
Gabrielle St. George (Vetro) Respondent (Respondent)
Counsel: Dominic Vetro, in person Gabrielle St. George, in person
Heard: In writing
On appeal from: The order of Justice Nancy Mossip of the Superior Court of Justice, dated November 16, 2017.
Reasons for Decision
[1] Mr. Vetro appeals from the order of the motion judge that granted the respondent's motion to strike out the appellant's motion to change. The motion judge dismissed other relief that had been sought by the respondent. Pursuant to the order of Lauwers J.A., dated March 22, 2018, this appeal was heard based solely on written submissions.
[2] The history of this proceeding was aptly described by the motion judge as "extraordinary and tortured". It dates back to a judgment dated November 19, 2012 that was made after an uncontested trial. The trial was uncontested because the appellant's pleadings had been struck. In that judgment, a number of awards were made in favour of the respondent, including awards for child and spousal support arrears. The appellant appealed the judgment and that appeal was dismissed on May 7, 2013.
[3] The appellant then brought his motion to change on June 13, 2014. The appellant asserted that he had developed a mental disability that constituted a material change in circumstances. The motion to change was adjourned a number of times. It was eventually scheduled to proceed to trial on March 23, 2017, but that trial was adjourned on the basis of a consent order. In order to understand the consent order, it is necessary to know that the appellant was intending to seek leave to appeal to the Supreme Court of Canada from the order of this court that had dismissed his appeal back in May, 2013. While the consent order is not worded as clearly as it might have been, it required the appellant to "commence his appeal on or before September 15, 2017". Given the circumstances, this requirement must be read as referring to the appellant's motion for leave to appeal.
[4] The appellant sent his motion for an extension of time and for leave to appeal to the Supreme Court of Canada on September 15, 2017. It was deficient in a number of respects, as the Registrar of the Supreme Court of Canada subsequently advised the appellant.[1]
[5] The respondent then brought a motion to strike out the motion to change along with other relief. The motion judge found that the belated efforts of the appellant to bring his motion for leave to appeal were "too little too late" and struck out the appellant's motion to change. She found, given the history of this matter, that the fact that the appellant had only sent his motion to the Supreme Court of Canada on September 15, 2017 "demonstrates a disrespect and distain for the court, either consciously or unconsciously". It is this specific order that the appellant appeals.
[6] The order made by the motion judge involved an exercise of her discretion. The appellant has failed to establish any fundamental error in the manner in which the motion judge exercised her discretion in the circumstances of this case. Given the history of this proceeding, the motion judge was entitled to attempt to bring some measure of finality to it and to hold the appellant to the strict terms of the consent order. The appellant has a history of delaying this matter and also has a history of failing to make most payments he is required to make for spousal and child support. Indeed, his continuing failure to make those payments might well have entitled this court to refuse to entertain this appeal.
[7] We understand and appreciate that the appellant suffers from a disability but we cannot find any substantiation for his claim that his disability was not accommodated by the motion judge when the matter was before her. It was also accommodated in this court by allowing the appellant to argue his appeal in writing, so that he would have ample time to organize his thoughts and make his submissions without the pressures associated with an oral hearing.
[8] The appeal is dismissed. There will be no order as to costs.
"David Watt J.A."
"B.W. Miller J.A."
"I.V.B. Nordheimer J.A."
Footnote
[1] We should note on this point that the appellant eventually perfected his motion for an extension of time to seek leave to appeal and for leave to appeal itself. Both were dismissed by the Supreme Court of Canada on July 5, 2018.