Default of a Support Order
In the case of Ainslie v O’Neil, the Court of Appeal for Ontario refused to hear an appeal due to the appellant’s default on a support order. This case showed that the Court of Appeal may be opposed to entertaining an appeal in which the moving party has shown a pattern of defaulting on previous court orders.
The appellant sought to appeal the order of Justice Kiteley of the Superior Court of Justice, which dismissed the appellant’s motion for leave to bring a motion to change the final order given by Justice Harvison Young.
The motion to change was regarding child support, spousal support, and section 7 expenses. However, the appellant was in default of payments for the amounts ordered in Justice Harvison Young’s April 2007 judgment.
The order of Justice Kiteley stated that before the appellant could bring any motion to change the final order, he must first file proof with the court that he has complied with the judgment of Justice Harvison Young. The appellant argued that this stipulation was unconstitutional.
The court relied on the Supreme Court of Canada’s decision in Dickie v Dickie to determine whether or not it could refuse to hear the appeal. In particular, the court turned to Justice Laskin’s dissenting reasons.
Laskin J.A., in dissent, was of the view that the court had a discretion to refuse to entertain Dr. Dickie's appeal and that, based on the record showing continuing disobedience with court orders, it should have exercised that discretion. Hence, he would have adjourned Dr. Dickie's appeal until Dr. Dickie had taken steps to comply with the court orders.
In our view, the Court of Appeal had the authority to refuse to entertain Dr. Dickie's appeal and, had it exercised its discretion as proposed by Laskin J.A. and for the reasons he gave, we would have found no basis to interfere with the result.
Counsel for the Appellant submitted that the case at bar should be distinguished from Dickie because the appellant had not been found in contempt. He also submitted that family law cases should be treated differently than commercial cases where there is a default.
Ultimately, the Court of Appeal found that the principle in Dickie was particularly applicable in light of the long and continuing pattern of willful default on behalf of the appellant. The Court of Appeal decided to stay the hearing of the appeal until the appellant complied with the support orders. Additionally, costs were awarded to the respondent, which would be payable as a condition of lifting the stay.
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