COURT OF APPEAL FOR ONTARIO
CITATION: Sigalas v. Sigalas Selas, 2025 ONCA 75
DATE: 20250131
DOCKET: M55258 & COA-24-CV-0381
Pepall, Miller and Wilson JJ.A.
BETWEEN
Sabrina Sigalas
Applicant (Respondent/Moving Party)
and
Apostolos Sigalas Selas
Respondent (Appellant/Responding Party)
Allan Rouben, for the appellant/responding party
Meghann P. Melito and Julia McArthur, for the respondent/moving party
Heard: September 5, 2024
On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice, dated March 12, 2024, with reasons at 2024 ONSC 1474.
D.A. Wilson J.A.:
[1] This is a family law matter. The appellant husband, Apostolos Sigalas Selas (the “husband”), appeals the judgment of the trial judge dated March 12, 2024, that followed an uncontested trial in which he did not participate. The respondent wife, Sabrina Sigalas (the “wife”), also brings a motion to quash the husband’s appeal, arguing that since he did not participate in the underlying proceeding, he therefore lacks standing to bring the appeal. The wife also submits that the husband is in breach of numerous orders of the Superior Court of Justice, and he should not be permitted to proceed with an appeal on that basis as well.
[2] At the outset of the hearing, the panel advised counsel that we would hear the motion to quash the appeal, reserve our decision, then hear the appeal on the merits. The wife also filed a motion to strike certain evidence in the husband’s appeal record for privilege. The panel declined to hear that motion given that it was not served in accordance with the timelines required under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
(1) Background
[3] The parties were married in 2010 and have two young children. They separated in 2022 and the wife remained in the home, which was a rental premises. She commenced the underlying application in December 2022. On February 7, 2023, the parties executed a comprehensive separation agreement, which provided that there would be shared parenting, joint decision-making, and a nesting arrangement in the family home.
[4] Unfortunately, the relationship between the parties deteriorated and police were involved. Both parties were charged with assault at different times. The wife made allegations of drug use and excessive drinking against the husband. The wife alleged that the husband’s income was in the range of $300,000, while the husband stated that his income was one-third of that.
[5] The husband is self-employed in the mortgage brokerage business. He failed to provide financial documentation despite the requirements of the Family Law Rules, O. Reg. 114/99, and an order made in December 2022. He refused to provide his consent to enable his wife to travel to Florida with the children in March 2023. That position necessitated a motion, and the husband was ordered to pay $1,800 in costs, which he failed to pay until recently. He was ordered to pay child support on an interim basis commencing January 1, 2023, in the sum of $2,977. The husband failed to serve his answer with accompanying financial documentation.
[6] On July 4, 2023, at a scheduled court attendance that the husband failed to attend, an order was made requiring him to serve and file his answer within ten business days of the date of the order, failing which the matter could be set down for an uncontested trial.
[7] The husband served his pleading after business hours on July 18, 2023, which did not comply with the July 4, 2023 order. It was not properly filed, and according to the wife, it was incomplete. As a result, the wife set the matter down as an uncontested trial which was heard in writing on February 26, 2024. The trial judge released the decision on March 12, 2024, with a supplementary decision being released on May 6, 2024. The trial judge dealt with child support, the division of household items, the children’s special expenses, spousal support, equalization of net family property, the residence of the children, parenting schedules, decision-making responsibility for the children, and other incidental matters. It is from this decision that the husband appeals.
(2) Motion to Quash
[8] The wife submits that the husband is in breach of numerous orders of the Superior Court requiring disclosure of his financial documentation. She seeks to have the appeal quashed on this basis. Although the husband paid child support initially, he has not paid child support since June 2023. The spousal support and the equalization payments ordered by the trial judge have not been made. He has not paid the various costs orders. The wife submits that the husband has shown flagrant disregard for court orders. He has failed to offer any explanation for his non-compliance or his failure to provide the required financial disclosure. The wife disputes the veracity of his evidence and argues he does not have standing to seek relief from this court and his appeal ought to be quashed.
[9] The husband filed an affidavit in response to this motion setting out why he has not been able to pay support. Specifically, he asserts that his income has decreased by at least half, and he has had serious health issues that have impacted his ability to earn an income. He has a large amount of debt for unpaid taxes and credit cards. The husband has been paying the special expenses of the children and recently paid the $1,800 outstanding costs order. The husband submits that as a self-represented litigant, he believed he served his answer in accordance with the timeline required by the court order. He was unaware of the uncontested trial that resulted in the loss of significant rights as a father.
[10] The court can quash an appeal if there has been non-compliance with court orders: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3); Cosentino v. Cosentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8; Dickie v. Dickie (2006), 2006 576 (ON CA), 78 O.R. (3d) 1 (C.A.), at paras. 84-87, per Laskin J.A. (dissenting), rev’d 2007 SCC 8, [2007] 1 S.C.R. 346; Siddiqui v. Anwar, 2018 ONCA 965, at para. 19; A.A. v. Z.G., 2016 ONCA 660, at para. 4. The court may consider various factors when determining whether or not the appeal should be quashed, such as the wilfulness of the breach, the amount of arrears, the explanation for the breach, and any attempts to correct the breach: see Brophy v. Brophy (2004), 2004 25419 (ON CA), 45 R.F.L. (5th) 56 (Ont. C.A.), at paras. 9-15.
[11] This case is distinguishable from Brophy, where the husband participated in the trial and appealed the trial judge’s decision. In Brophy, Laskin J.A. found that the husband wilfully refused to pay spousal support despite having the means to do so: at para. 10. Here, the husband’s affidavit evidence indicates that his breach of the court order requiring the service and filing of his pleading was minor and only arose because he did not understand that if he failed to file it before 4:00 p.m., it would be deemed served the next day. His explanation for his lack of compliance with the support payments is that he has experienced serious health issues which have impacted his ability to work and his income has deteriorated significantly, such that he cannot afford to make the payments.
[12] The trial judge’s decision refers to the July 4, 2023 order requiring the husband to file his answer within ten days of the order, but it does not appear she was advised that the husband sent an answer to comply with her order that was received after business hours. On the record before this court, the wife did not advise the husband that his answer was late and she would be proceeding with an uncontested trial, even though there is correspondence between the wife and the husband in the timeframe prior to the uncontested trial. The trial judge noted that the husband had “checked out” of the legal proceedings. That does not appear to be correct.
[13] It is clear the husband has not complied with several court orders. He only recently paid the $1,800 costs order from March 2023 and he has not paid the court ordered spousal or child support for some time. He provided some further financial disclosure at the time he swore his affidavit, but he has not complied with his obligations under the Family Law Rules or the various court orders. Essentially, he asserts that he is doing the best he can under the circumstances.
[14] In Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65, this court considered a motion to quash in the context of a family law matter. The husband failed to attend trial and the trial judge made orders fixing child support: Gray, at paras. 9-11. This court concluded, at para. 33, that while this court retains jurisdiction to hear any appeal of a final order, r. 25(19) of the Family Law Rules provides a more effective way to correct orders within its ambit.
[15] The facts of Hilton v. Hilton, 2021 ONCA 29, are also similar to the instant case. In that case, the husband did not file his answer or comply with a court order requiring delivery of his answer and financial disclosure within 30 days: Hilton, at paras. 1-2. The matter then proceeded as an uncontested trial. This court directed that the husband pursue his remedies in the Superior Court of Justice by way of a r. 25(19) motion. The court’s comments are applicable here:
By failing to comply with the Family Law Rules and the orders of Fryer J., the appellant is the author of much of his misfortune. When a party does not participate in the process, things tend to not go well. Nevertheless, the appellant’s allegations of the respondent’s misrepresentations and material omissions must still be determined on the merits: Hilton, at para. 10.
[16] In Kim v. McIntosh, 2023 ONCA 356, this court addressed when a motion under r. 25(19) ought to be brought: see paras. 29-33. That option was available to the husband in this case if he was of the view that the trial judge’s order ought to be set aside.
[17] In the case at bar, the wife did not make full disclosure to the trial judge at the uncontested trial. The trial judge ought to have been informed that the husband had served an answer and financial statement, even if it was incomplete. The trial judge ordered child support based on the husband’s imputed income of $300,000, the amount suggested by the wife. The trial judge was not advised that the husband indicated he had been ill and unable to work at full capacity, and as a result, he alleges he suffered a serious decline in his ability to earn an income. The trial judge ought to have been made aware of the husband’s evidence on these matters and she could have determined whether it was appropriate to proceed with an uncontested trial in those circumstances.
[18] Given these circumstances, this is not, in my view, an appropriate case to quash the appeal based on the husband’s non-compliance. The motion to quash is dismissed.
(3) Appeal
[19] The crux of the husband’s appeal lies in the fact that the trial judge erroneously heard the case as an uncontested matter. He submits that he complied with the July 4, 2023 order by sending his answer and financial statement to the wife’s counsel on July 18, 2023 at 5:32 p.m., which was ten business days as required by the order. A party’s pleading should be struck only in exceptional circumstances when no other remedy would be sufficient. The husband submits he was self-represented and did not understand that service had to be made by 4:00 p.m. to comply with the order. No one advised him of this requirement.
[20] He submits that the trial judge made her findings based on false and misleading information without an opportunity for him to put his case forward, and as such, he was denied procedural fairness. His right to parental time and to participate in decision-making was severely restricted without justification and based on inaccurate information provided by the wife. Importantly, the trial judge made calculations of child and spousal support based on an imputed income of $300,000. Such an income figure was inaccurate. This was known to the wife and ought to have been brought to the attention of the presiding judge. As a result of these factors, the husband submits that the trial judge’s decision must be set aside.
[21] The wife argues that the July 4, 2023 order was made as a result of the husband’s conduct throughout the course of the litigation. He was given a final chance to file his answer and he failed to comply with the timelines he was given. The answer he eventually provided was lacking in information and was never properly filed with the court. The husband breached numerous court orders, leading to the July 4, 2023 order, which he did not appeal. The trial judge had a full record before her and was not misled in any respect by the wife’s counsel. The husband has not identified any errors in the underlying decision and the trial judge’s findings are entitled to deference. The wife argues that the appeal should be dismissed with costs.
(4) Analysis
[22] This application, commenced by the wife, sought retroactive and ongoing child support, spousal support, equalization of net family property, contribution toward the special expenses of the children, an order that the children would reside with her, that she be given sole decision-making responsibility, and other ancillary orders. From the outset, the husband was aware that these very important issues were before the court.
[23] An interim separation agreement was signed on February 7, 2023, providing for a nesting arrangement between the parties in the family home. That did not last long; the wife brought a motion to change the agreement. A further motion was required to be heard in March 2023 because the husband would not permit the children to travel with their mother.
[24] There was a court attendance scheduled for July 4, 2023 that the husband failed to attend after trying to unilaterally cancel it without notification to the wife. The husband had not made financial disclosure as ordered, filed his answer, nor paid the costs from the earlier motion. The trial judge ordered the husband to serve and file his answer within ten business days, failing which the wife could elect to proceed to an uncontested trial without further notice to the husband. There is no dispute that the husband was aware of the order that required him to serve and file his answer by a deadline and that if he did not comply the case would proceed to trial in his absence. He did not seek to vary the order or to obtain an extension of the deadline from the court.
[25] I do not accept the husband’s submission that the trial judge was somehow misled by the wife or that she made her determinations based on inaccurate documentation and evidence. The affidavit of Sabrina Sigalas, dated October 3, 2023, contains copies of the various endorsements made, the very limited financial information that the husband provided, the interim separation agreement, and copies of communications between the parties. After the initial hearing, the trial judge requested further documentation, following which she issued further reasons on May 6, 2024.
[26] After the husband served a deficient pleading late, he did nothing further. He breached the July 4, 2023 order and the trial did not occur for more than seven months. In that time, he took no steps to remedy his default and comply with the various court orders. He advised counsel that he intended on bringing a motion to vary the order made July 4, 2023, but he did not do so.
[27] The trial judge noted that the husband had “periodically stopped providing necessary financial support to the family, whether by cutting off Sabrina’s access to credit cards, failing to pay the rent or water bill on time or failing to pay for cable or internet, which were disconnected as a result”: at para. 18. At the time of the uncontested trial, the husband failed to pay child support since June 2023 and the arrears totalled $63,555. He paid nothing in spousal support despite the trial judge’s determination that his amount in arrears at the time of the May 2024 judgment totalled $65,920.
[28] While the husband complains he was denied procedural fairness because the trial judge elected to proceed to trial without his participation, I do not agree. The July 4, 2023 order was made because of the husband’s failure to comply with his obligations under the Family Law Rules and with previous court orders. The husband was aware of the provision that if he failed to serve and file his answer within the time limit set out in the order, the wife could move to an uncontested trial. He chose to wait until the last day and filed an answer that was incomplete and late. The trial judge was entitled to proceed with an uncontested trial given the husband’s conduct and breach of the July 4, 2023 order. I see no error in her decision to do so. There is no merit to the husband’s argument that, as a result of his own conduct, he was denied procedural fairness in the trial process.
[29] Even now, the husband failed to produce the financial documentation that should have been produced at the outset of this application and which was the subject matter of several court orders. The husband cannot assert before this court that the amounts awarded by the trial judge for child support and spousal support are incorrect when he has failed to make full and complete disclosure of his financial documentation. Furthermore, while the husband alleges that illness prevents him from working to his full capacity, the onus rests with him to provide the court with sufficient evidence supporting this position and he failed to do so.
[30] The husband has threatened both the wife and her counsel, which is unacceptable. The trial judge found, at para. 78, that the husband acted in bad faith in this litigation:
He failed to abide by court orders, forced the Applicant to bring an emergency case conference by ceasing to fund the family’s necessities, unreasonably withheld consent to a trip and failed to make necessary disclosure to assist this process in being conducted expeditiously He did not file material for parenting plan purposes or to assist with the calculations of support. This is the type of conduct which selfishly and unnecessarily uses scarce court resources.
I agree.
[31] It was within the trial judge’s discretion to make the findings that she did based on the evidence and her findings are entitled to deference from this court: see Johanson v. Hinde, 2016 ONCA 430. The evidence of the wife was incomplete, but that is in part because of the husband’s failure to provide his financial documentation. The trial judge had the best evidence available to her at the time of the trial and she requested and received further documentation, following which she finalized her calculations. There was no error in proceeding in this fashion.
(5) Disposition
[32] I would dismiss the motion to quash and dismiss the appeal.
[33] The husband seeks costs of the motion and the appeal on a partial indemnity basis in the sum of $50,728.82. The wife seeks costs of the motion to quash on a partial indemnity basis in the sum of $3,257.45 and of the appeal in the sum of $11,662.62. She has also included sums calculated on a substantial indemnity basis and on a full indemnity basis. In my view, the appropriate scale of costs is on a partial indemnity basis. The wife was successful on appeal and although the motion to quash was dismissed, it was not unreasonable for her to have brought it in the circumstances.
[34] I would award costs in the amount of $15,000, all inclusive.
Released: January 31, 2025 “S.E.P.”
“D.A. Wilson J.A.”
“I agree. S.E. Pepall J.A.”
“I agree. B.W. Miller J.A.”