Court of Appeal for Ontario

Date: 2022-12-14 Docket: M53842 (COA-22-CV-0232)

Between: Lynda Van Delst Applicant (Respondent/Moving Party)

And: Thomas John Hronowsky Respondent (Appellant/Responding Party)

Counsel: Katherine Shadbolt, for the moving party Thomas John Hronowsky, acting in person

Heard: December 12, 2022

Reasons for Decision

[1] The moving party, Ms. Van Delst, seeks an order quashing Mr. Hronowsky’s third appeal to this court relating to the equalization payment that Mr. Hronowsky owes her.

[2] After the oral hearing of the motion, the court advised the parties that the motion was granted, with reasons to follow. These are the promised reasons. The motion is granted because the appeal is an abuse of process.

Background

[3] This motion is the latest in a protracted matrimonial dispute that includes two trials, two previous appeals to this court, several motions, and a panel review of a single judge’s order.

[4] The parties were married in 1995 and separated in 2016. A trial was held and, in April 2019, Mr. Hronowsky was ordered to pay Ms. Van Delst a substantial equalization payment. In August 2019, costs of the first trial were ordered in favour of Ms. Van Delst.

[5] Mr. Hronowsky appealed. He moved to introduce new evidence on appeal without success. Costs of the motion were ordered against him. This court disposed of the appeal by ordering a retrial on a single issue – Ms. Van Delst’s pension was to be calculated based on a normal retirement date of age 60 rather than 65. The appeal judgment affirmed all other determinations made on the first trial.

[6] In advance of the retrial, the parties each engaged experts to prepare pension valuations. Those valuations produced figures that were less than a thousand dollars apart. Nonetheless, Mr. Hronowsky forced the matter on to a second trial. The second trial lasted much longer than necessary because he raised numerous matters outside the scope of the recalculation of the pension.

[7] The second trial decision affirmed the costs order from the first trial and ordered costs of the second trial, on a full indemnity basis, against Mr. Hronowsky.

[8] Mr. Hronowsky appealed the second trial decision to this court. His appeal was dismissed with costs against him. This court gave Ms. Van Delst sixty days, or until July 3, 2022, to commence enforcement proceedings for the equalization payment and the various costs orders, none of which had been paid by Mr. Hronowsky.

[9] Ms. Van Delst served three notices of garnishment in June 2022 directing Mr. Hronowsky’s banks to pay the funds owed to the court clerk.

[10] Mr. Hronowsky disputed the garnishments on the basis that he had delivered a motion to this court in June 2022 seeking a stay of enforcement, and sought to have the enforcement steps reversed and the money returned to his banking and investment accounts. In July 2022, Simmons J.A. heard and dismissed the motion, with costs against Mr. Hronowsky.

[11] Mr. Hronowsky moved for a panel review of the decision of Simmons J.A.

[12] In September 2022, Mr. Hronowsky’s garnishment dispute was heard. He argued that it should not proceed until his review motion of Simmons J.A.’s order had been heard and decided.

[13] By order dated October 3, 2022, the hearing judge dismissed the garnishment dispute and ordered that the garnished sum, held in court, be paid out to Ms. Van Delst (the “Garnishment Order”). The hearing judge found that Mr. Hronowsky had a long and well-documented history of delaying the enforcement action and had failed to raise any accepted grounds for a dispute to a garnishment.

[14] Mr. Hronowsky filed a notice of appeal of the Garnishment Order (the “Appeal”) but has not perfected it. The Appeal has the effect of staying the Garnishment Order. It is this Appeal which the moving party seeks to have quashed.

[15] This motion was scheduled to be heard on December 12, 2022. On December 7, 2022, Mr. Hronowsky wrote to the court seeking to have it adjourned. The court advised the parties that the adjournment request would be the first matter to be heard and decided on the return of the motion but the parties should be prepared to proceed on December 12, as scheduled. At the hearing of the motion, Mr. Hronowsky argued for an adjournment primarily on the basis that he had had insufficient time to prepare responding motion material.

[16] We declined to adjourn the motion. Mr. Hronowsky’s written request for an adjournment was contained in a 35-page letter and accompanied by a 146-page enclosure containing supplementary material. Based on those materials, it is clear that he had in fact provided a response to the motion. Moreover, when this court dismissed Mr. Hronowsky’s motion to set aside the order of Simmons J.A. on November 9, 2022, it established December 12, 2022, as the hearing date for this motion. That gave Mr. Hronowsky over a month’s notice and sufficient time for him to prepare responding materials.

Analysis

[17] Rule 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, empowers this court to stay or dismiss a proceeding if the proceeding appears, on its face, to be frivolous or vexatious or otherwise an abuse of the process of the court. On its face, this Appeal is another meritless attempt by Mr. Hronowsky to avoid paying Ms. Van Delst the equalization monies she is owed and the many unpaid costs awards in her favour.

[18] As the moving party notes, one of the main grounds set out in the Notice of Appeal is that the hearing judge was not aware of the pending panel review of Simmons J.A.’s order before he denied Mr. Hronowsky’s request for a stay. Because this court dismissed Mr. Hronowsky’s challenge of Simmons J.A.’s order (with costs against him), on November 9, 2022, this ground of appeal is moot.

[19] Although Mr. Hronowsky continues to challenge his obligation to make a cash equalization payment, this court upheld that method of payment on the first appeal. This court reiterated that point on the second appeal. Accordingly, this court cannot – and will not – consider again whether Mr. Hronowsky is required to pay the equalization in cash. To be clear, Mr. Hronowsky is required to make the equalization payment in cash and he is also required to pay all of the costs orders in cash.

[20] It would be grossly unfair to Ms. Van Delst to allow Mr. Hronowsky to continue to relitigate this matter: her entitlement to the equalization payment and numerous unpaid costs orders is clear and has been reaffirmed in numerous judicial proceedings. Mr. Hronowsky’s actions have prevented Ms. Van Delst from enforcing valid court orders and caused her to amass large legal bills. In addition to his non-compliance with monetary orders, he is in arrears of child support, and has failed to comply with court orders requiring him to provide his 2020 and 2021 income tax information to the moving party. In our view, Mr. Hronowsky’s failure to abide by court orders alone justifies this court to exercise its discretion and refuse to hear his appeal: Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6. In any event, to permit Mr. Hronowsky to continue with the Appeal is an abuse of process and will no longer be tolerated: Bell v. Fishka, 2022 ONCA 683.

Disposition

[21] For these reasons, the motion is granted and the Appeal is quashed, with costs to the moving party fixed at $4,620, all inclusive.

[22] Accordingly, an order shall go lifting the stay and directing that the monies held by the enforcement office in the Superior Court of Justice (in Ottawa) be paid to Ms. Van Delst forthwith in accordance with the Garnishment Order.

[23] This court further orders that Mr. Hronowsky is prohibited from taking any further steps in this proceeding in this court without leave.

“E.E. Gillese J.A.” “M. Tulloch J.A.” “L.B. Roberts J.A.”