



COURT OF APPEAL FOR ONTARIO

CITATION: Cosentino v. Cosentino, 2017 ONCA 593

DATE: 20170707

DOCKET:  M47926, M47948 (C62422)

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Karina Cosentino

Applicant (Respondent in Appeal)

and

Benito Cosentino

Respondent (Appellant)

J. Richard Forget for, Benito Cosentino

Hugh M. Evans, for Karina Cosentino

Heard: July 6, 2017

REASONS FOR DECISION

[1]

The parties are involved in an ongoing matrimonial dispute. They were
    married in 2001 and have two children, now ages 11 and 13.

[2]

There was an order in the court below to bifurcate the custody and
    access issues from the financial matters. The financial matters were dealt with
    at a six-day trial held before Douglas J. On June 16, 2016, the trial judge
    made a final order that the husband pay the wife an equalization payment, child
    support and spousal support.

[3]

The husband appealed the quantum of the equalization payment. The wife
    cross-appealed the quantum of child support.

[4]

The wife now moves for an order dismissing the husbands appeal for
    non-payment of child and spousal support. In the alternative, if he is allowed
    to continue the appeal, she seeks to have certain case-management style
    conditions placed on him.

[5]

On October 25, 2016, Lauwers J.A. heard a motion by the wife for partial
    payment of the equalization payment. At the return of the motion, however, the
    parties instead requested that interim child and spousal support payments be
    set, together with an expedited appeal. The husbands counsel proposed
    $1,412.00 per month and the wifes counsel agreed. Lauwers J.A. made the order
    and neither party has sought to review it.

[6]

Lauwers J.A. also ordered that the appeal be expedited and heard in
    March 2017. March 2017 has come and gone and the appeal has not been perfected
    or heard. On March 29, 2017, Blair J.A., sitting in status court, commented
    that little has been done and he would consider placing the matter on the
    Purge Court list to be considered for dismissal for delay.

[7]

The husband has not complied with the order of Lauwers J.A. He has made
    only partial payments since February 2017. The wife seeks a dismissal of the
    appeal.

[8]

This court has consistently refused to hear from a party or entertain an
    appeal where the record shows continuing disobedience with court orders: see
Dickie v. Dickie
, 2007 SCC 8, [2007] 1 S.C.R. 346;
Nowacki v. Nowacki
,
    2015 CanLii 41092 (Ont. C.A.);
Martyn v. Martyn
, 2010 ONCA 730;
Burley
    v. Burley
, 2009 ONCA 2, 244 O.A.C. 198; and
Murphy v. Murphy
,
    2015 ONCA 69, 56 R.F.L. (7th) 257.

[9]

Here, it was the husbands counsel who  in order to avoid an order for
    partial payment of the equalization payment  proposed the amount of interim
    support, which the husband has since not paid.

[10]

The husbands actions in failing to pay the interim child and spousal
    support and in not pursuing or perfecting the appeal on a timely basis
    disentitle him from continuing with this appeal.

[11]

The wifes motion is allowed and the husbands appeal is dismissed with
    costs fixed at $3,750, inclusive of disbursements and HST. The costs may be
    enforced as part of support by the Family Responsibility Office.

[12]

At the wifes request, her cross-appeal is correspondingly dismissed
    without costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


