Court of Appeal for Ontario

Date: 2022-11-16 Docket: M53690 (C70419)

Before: Paciocco, George and Favreau JJ.A.

Between:

Amy Dawn Lamothe Applicant (Respondent/ Moving Party)

And:

Patrick Gregory Ellis Respondent (Appellant/ Responding Party)

Counsel:

Valois Ambrosino, Amy Voss and Ashley Boggild, for the respondent / moving party Patrick Gregory Ellis, acting in person

Heard: November 10, 2022

On appeal from the order of Justice Erika Chozik of the Superior Court of Justice, dated February 1, 2022.

Reasons for Decision

[1] The appellant, Patrick Gregory Ellis, has filed an appeal against support and related orders made by a trial judge on February 1, 2022, after an uncontested trial. The trial was uncontested because on July 9, 2021, in an order that Mr. Ellis did not appeal, the trial judge struck Mr. Ellis’s pleadings and permitted the respondent, Amy Dawn Lamothe, to proceed with an uncontested trial. The trial judge made that order because of Mr. Ellis’s “wilful and deliberate” noncompliance with multiple court orders and his refusal to provide important financial disclosure.

[2] Ms. Lamothe seeks to prevent Mr. Ellis from bringing his appeal from the trial judge’s orders of February 1, 2022, through a motion to quash his appeal pursuant to sections 134 and 140(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. We grant that motion on two separate bases.

[3] First, this court will not typically hear an appeal by a party from an unopposed proceeding: Peerenboom v. Peerenboom, 2020 ONCA 240, 446 D.L.R. (4th) 418, at para. 56. Participation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interests of justice. We see no bases for making an exception to that general practice in Mr. Ellis’s case. The issues at stake are purely financial and do not raise questions of importance to the best interest of the child. The issues raised on appeal involve questions of mixed findings of fact and law as well as discretionary decisions made by the trial judge, such that permitting the appeal to proceed would enable Mr. Ellis to engage indirectly in issues that he was denied participation in through an order made by the trial judge that he has not appealed. Moreover, the grounds of appeal he advances from the order of February 1, 2022, do not have clear merit, and there is no indication that an injustice may have been done.

[4] Second, an appeal court may dismiss an appeal for non-compliance with court orders: Abu-Saud v. Abu-Saud, 2020 ONCA 824, at paras. 4-5. Mr. Ellis has chronically and willfully breached numerous court orders thereby delaying the resolution of the financial issues and causing extreme prejudice to Ms. Lamothe and their child. The arrears he owes for costs and support orders that he has breached, excluding the costs of the order being appealed, are considerable, approaching if not exceeding $200,000. When Mr. Ellis was given the opportunity by the trial judge to explain his nonpayment of the costs and support orders, his claim that he could not afford to do so was found not to be credible. That finding is supported on the record before us. Nor has Mr. Ellis made efforts to correct his breaches. He is seeking to benefit from a favourable appeal order but has a demonstrated pattern of disregarding unfavourable court orders. This is unfair to Ms. Lamothe and contrary to the interests of justice.

[5] Appeal C70419 is quashed. Mr. Ellis shall not initiate any proceedings relating to the financial matters that were the subject of the order of February 1, 2022, unless he has paid all outstanding costs and support amounts owing or unless he has obtained the leave of the court. Mr. Ellis’s conduct in these proceedings justifies costs on an elevated scale. Costs of the motion to quash and the appeal are therefore payable to Amy Dawn Lamothe in the amount of $35,000 inclusive of applicable taxes and disbursements.

"David M. Paciocco J.A."

"J. George J.A."

"L. Favreau J.A."