The parties were married in 2010 and separated in 2022. They have two young children together.
Following the separation, the wife remained in the rental family home and commenced an application in December 2022. The husband failed to serve his Answer and the required financial disclosure, and did not attend a scheduled court appearance on July 4, 2023. At that appearance, the court ordered him to serve and file his Answer within ten business days, failing which the matter could be set down for an uncontested trial.
The husband served his Answer after business hours on the final day, in breach of the court order. His materials were also incomplete and improperly filed. As a result, the wife set the matter down for an uncontested trial, which proceeded in writing on February 26, 2024.
The trial judge released a decision on March 12, 2024, with a supplementary decision issued on May 6, 2024, addressing all outstanding issues.
The husband now appeals the trial judge’s decision. The wife, in turn, brings a motion to quash the appeal.
MOTION TO QUASH
The wife seeks to quash the appeal on the basis of the husband’s repeated breaches of multiple court orders, including his failure to provide financial disclosure, pay child and spousal support, and comply with equalization and costs orders. She argues that his conduct demonstrates a flagrant disregard for the court process, thereby undermining his right to appeal.
In response, the husband submits that his non-compliance stems from a significant decline in income, serious health concerns, and substantial debt. He notes that he has continued to pay the children’s special expenses and has recently paid an outstanding costs order. As a self-represented litigant, he believed he had complied with the timeline and was unaware that the matter proceeded as an uncontested trial.
While the court has discretion to quash an appeal for non-compliance, relevant factors include the willfulness of the breach, the arrears, the explanations provided, and any remedial steps taken. In this case, the Ontario Court of Appeal (“ONCA”) ultimately held that it was not appropriate to quash the appeal. The wife did not fully inform the trial judge that the husband had served an Answer and financial statement—albeit late and incomplete—or that he claimed to be seriously ill and unable to work to full capacity. The ONCA found that this context ought to have been brought to the trial judge’s attention before proceeding on an uncontested basis. Accordingly, the motion to quash was dismissed.
APPEAL
The husband appealed on the basis that the trial judge erred in proceeding on an uncontested basis. He argued that he complied with the July 4, 2023 order by serving his Answer and Financial Statement on the final day—albeit after 4:00 p.m.—and that, as a self-represented litigant, he was unaware of the time requirement. He further claimed he was denied procedural fairness and that the trial judge relied on inaccurate information, including an imputed income of $300,000, which led to unjust support and parenting orders.
In response, the wife submitted that the husband repeatedly breached court orders despite having ample opportunity to comply. She argued that the trial judge had a complete record, was not misled, and that the appeal should be dismissed with costs.
The ONCA upheld the trial judge’s decision to proceed on an uncontested basis, rejecting the husband's procedural fairness argument. The ONCA found that:
- The husband was aware of the wife’s application and the significant relief she was seeking from the outset;
- The July 4, 2023 order was issued as a result of the husband’s ongoing non-compliance with the Family Law Rules and earlier court orders;
- The husband was aware that failure to serve and file a complete Answer within the prescribed timeframe would permit the wife to proceed with an uncontested trial; and
- The husband took no further steps to remedy his default or comply with other court orders, despite a delay of over seven months before the trial.
The ONCA further noted that, even at the time of the appeal, the husband had still not produced the financial disclosure required at the outset of the proceeding. As such, he could not challenge the support orders without having made full and frank disclosure. Moreover, although he alleged that illness limited his earning capacity, he failed to provide sufficient medical evidence to support that claim.
The ONCA concluded that there was no error in the manner in which the trial proceeded as the trial judge properly exercised her discretion, made findings based on the best evidence available, and was entitled to deference.