When a party receives an unfavourable result at trial, they may have grounds to launch an appeal. However, there is no automatic right to appeal, and judges can decide to dismiss an appeal. In family law cases, an appeal can be dismissed if the appellant has not complied with a support order, or where there is a record of disobeying court orders. Judges have emphasized that parties do not get to unilaterally decide whether to comply, and when a party has not met their obligations, courts can quash their appeal.
A party may wish to appeal a determination on spousal support, but importantly an existing support order is not automatically stayed when a notice of appeal is filed. This was the situation in Brophy v. Brophy, where the applicant wished to challenge the trial court findings, while the respondent brought a motion to dismiss the appeal on the basis the applicant defaulted in paying support and had accumulated over $50,000 in arrears. The threshold question on the motion was whether the applicant’s default was willful or resulted from an inability to pay. Based on the evidence, the Court concluded the default was willful as there was nothing to suggest the applicant was unable to pay. In fact, the time at which he stopped making payments appeared deliberate as it coincided with the dismissal of his motion for a stay of proceedings.
The Court noted that in cases where an appellant has intentionally chosen to not comply with a spousal support obligation, several options are available. One option in this case was to dismiss the appeal on the grounds that there has been non-compliance with a trial court’s order. In the British Columbia case of Elensky v. Elenskaya, the court stated that in such circumstances “it has been the practice of this Court not to hear appeals unless a convincing explanation is given of the impossibility of compliance with the court order”. That Court explained that there was no point in the court balancing “the interests of justice for the parties” only for one party to substitute their own view.
An alternative option was for the Court to adjourn an appeal until the appellant paid the arrears or showed that he was unable to pay the outstanding amount. Another option available to the Court was to hear the appeal on its merits despite the willful default. Allowing this could be justified in cases where the amount of arrears was minimal. However, in this case, the applicant did not explain his default or pay the arrears. Additionally, the amount of the arrears was not small, and he did not convince the judge that he was unable to pay them. Accordingly, these reasons justified the Court’s dismissal of the appeal. However, the judge ultimately decided the case on its merits.
In Dickie v. Dickie the appellant had been found in contempt for failing to comply with court orders and proceeded to appeal the finding of contempt before the Ontario Court of Appeal. The respondent argued that the court should decline to hear the appeal as the appellant had not complied with previous court orders and had fled the court’s jurisdiction to try to evade them. The respondent claimed that the court can refuse to hear an appellant in a case if they have willfully refused to comply with spousal and child support orders. Secondly, the respondent indicated there is a practice that a party in “contempt cannot be heard or take proceedings in the same cause until he or she has purged the contempt.”
The Court noted that there is authority to dismiss an appeal other than on the merits in section 140(5) of the Courts of Justice Act. However, in the Court’s view, that should be limited to situations that constitute an abuse of process or where the course of justice was impeded. Here, the Court found that adjourning or staying an appeal was preferable to a dismissal as it provided the appellant with time to either comply with the support orders or provide evidence of an inability to comply. If those conditions were satisfied, the appeal would be able to proceed. Further, that approach recognized the appellant’s “statutory right to appeal and the traditions of procedural fairness.” The Court also emphasized that requiring an appellant to comply with existing support orders before being able to proceed with an appeal does not make the appeal pointless because “[i]f the appellant is successful on appeal, the court’s disposition can take into account the extent to which the support payments made have exceeded the level of support ordered on appeal.”
The Court allowed the appeal in this case, but the Supreme Court of Canada later adopted the reasons provided by Justice Laskin in dissent. He looked at the Court’s discretion to stay or dismiss a proceeding as part of the Court’s ability to ensure litigants do not “abuse the court’s processes, or to impede the course of justice, or to undermine the court’s ability to enforce its own orders.” In meeting this rationale, courts can apply the general rule and refuse an appeal until willful breaches are cured.
In Abu-Saud v. Abu-Saud the respondent husband appealed the trial decision to the Ontario Court of Appeal. He brought a motion to dismiss the appeal based on the respondent’s ongoing breach of the court orders and non-payment of spousal support. The Court of Appeal cited various decisions which held that courts have jurisdiction to dismiss an appeal when the appellant has not complied with the terms of a support order. Additionally, Cosentino v. Cosentino made it clear that the court could refuse to hear from a defaulting appellant where there has been a record of continued disobedience with court orders. However, the court reiterated that dismissing an appeal due to non-compliance is not automatic, and looked to the factors in Brophy v. Brophy which guides judges in using their discretion when deciding whether to quash an appeal.
In this case, the considerations favoured the applicant’s motion to dismiss the appeal. The Court found that the respondent had unjustifiably breached the trial judge’s orders. Throughout the proceedings the respondent was represented by counsel, and he “never expressed confusion” about the orders or what was expected of him. He also breached the orders knowing that the applicant had a disability, was unable to work and faced financial challenges that were worsened by his non-compliance.
The Court determined that he did not pay the spousal support arrears of over $23,000 simply because he did not want to. While the respondent suggested it was challenging for him to make the payments, this was rejected on the basis of the trial judge’s findings about his income, financial documentation, his assets, and the use of his assets to fund his lifestyle. Consequently, this was a case where the applicant was entitled to full indemnity costs of her motion, as she would not have faced the expense except for the respondent’s continued refusal to meet his obligations.
Parties who did not obtain their desired outcome and want to initiate an appeal must think carefully before failing to make their required support payments, as courts can decide to quash an appeal on the basis of non-compliance. Courts have explained that allowing parties to skip their obligations while pursuing an appeal would reward their misconduct and therefore, will not be permitted.
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