Elgner v. Elgner, 2010 ONSC 1143, [2010] W.D.F.L. 2701

The following decision delivered by Justice McCombs deals with an application brought by a wife to end her husband’s appeal of the retroactive support order enforced unless the outstanding amounts owing under it were paid.

Mr. Elgner was ordered, by Justice Greer initially to pay retroactive and ongoing spousal support in the amount of $2.1 million dollars to his wife. The parties had been married for thirty-three years, and their children were all adults making Ms. Elgner the only dependent requiring support. Once the order was made Mr. Elgner attempted to appeal it and concurrently obtain a stay so that he would not have to pay the aforementioned amount until a determination had been made with regards to his appeal. The stay was dismissed by Justice Swinton, however, despite said dismissal Mr. Elgner persisted in his non-payment of the $2.1 million. Consequently, Ms. Elgner brought this motion to dismiss his leave to appeal, and other constitutional challenges to specific legislation (irrelevant for the purposes of this blog), branding him a willfully defaulting litigant. Justice McCombs agreed with Ms. Elgner’s characterization of Mr. Elgner and concluded that he was in willful breach of the order with no reasonable explanation and that as a willfully defaulting litigant his leave application etc. should not proceed. As a result he gave Mr. Elgner a week to comply with the order and pay the $2.1 million. Failure to do so would result in an order dismissing his motion for leave to appeal and quashing his notice of motion regarding the aforementioned constitutional challenge.

This judgment stems from the law as established in the case of Dickie v. Dickie, upon which Justice McCombs greatly relied. Basically, said case stands for the proposition that the court has the power to control and limit abuse of its process which grants a judge the discretion to refuse to hear the appeal of a litigant who has breached a previously enforced order (such as Mr. Elgner in this case).

Moreover, Mr. Elgner offered no reasonable explanation as to his non-compliance of the order especially since it was shown that his worth is an estimated $100,000,000.00 and so he fully possessed the financial capacity to obey Justice Greer’s order.

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