




CITATION:
Oelbaum v. Oelbaum, 2011
          ONCA 300





DATE:
          20110418



DOCKET: C52784



COURT OF APPEAL FOR ONTARIO



Cronk, Gillese and MacFarland JJ.A.



BETWEEN



Barbara Ann Oelbaum



Applicant (Respondent)



and



Mark Oelbaum



Respondent (Appellant)



No one appearing for the appellant



Bohdan A. Shulakewych, for the respondent



Heard and released orally: April 14, 2011



On appeal from the order of Justice John C. Murray of the
          Superior Court of Justice dated September 8, 2010.



ENDORSEMENT



[1]

Mr. Oelbaum did not appear today. Late last night he
    sent an email to the court offices in which he indicated that he would have
    problems attending today. However, on February 23, 2010, Moldaver J.A. dealt
    with Mr. Oelbaums earlier request for an adjournment. In granting that request,
    Moldaver J.A. made it abundantly clear that this appeal was to proceed today.
    In light of that, we accept the respondents submission that Mr. Oelbaums
    failure to attend today results in the appeal being dismissed as abandoned.

[2]

In any event, we would have dismissed this appeal as an
    abuse of process. This appeal emerges from a protracted matrimonial dispute.
    The appellants answer was struck because he repeatedly refused, in the face of
    multiple court orders, to make financial disclosure. No appeal was taken from
    the order striking his answer. Three years later the matter proceeded to an
    uncontested trial at which the respondent was awarded substantial equalization
    and support payments.

[3]

The appellant then moved before Murray J. for an order
    staying or setting aside the trial judgment and reinstating his answer. The
    motion was dismissed.

[4]

In his lengthy, comprehensive reasons, the motion judge
    pointed to the appellants failures to: pay outstanding awards; make any effort
    to have his answer reinstated for a period of some three years; provide
    meaningful disclosure; respect court orders; and, appeal the order striking his
    answer. The motion judge also noted that the appellant offered no explanations
    for these failures. He found that he was unable to assess any possible
    prejudice to the appellant because of the appellants own failure to provide
    financial disclosure. He also noted that this was not a case where the
    appellant was denied a chance to present a defence on the merits; rather, it
    was the appellant who had intentionally failed to provide the necessary
    information to the court so that the court could fairly and expeditiously
    resolve the issues.

[5]

Further, the motion judge found that there was no
    evidence of misleading or fraudulent tactics on the part of the respondent.
    Moreover, he found that the appellant had been gaming the process in order to
    prevent the respondent from receiving the financial support to which she was
    entitled.

[6]

Just prior to the hearing of the motion, the appellant
    had paid a small part of the outstanding spousal support arrears. Apart from
    that, however, he has not paid any of the outstanding equalization, support or
    costs orders.

[7]

In his factum on appeal, the appellant argued that the motion
    judge erred in not recognizing that the respondent displayed a lack of candour
    in the uncontested trial and in misapplying the law regarding the review of
    uncontested trials.

[8]

The respondent submitted that this court should
    exercise its discretion and refuse to hear this appeal.

[9]

We accept the respondents submission. In
Dickie v. Dickie
[2007],
    1 S.C.R. 346
, the Supreme Court of Canada affirmed the general rule that
    a court will not hear a litigant who has wilfully breached a court order until
    the litigant has cured the breach. This discretion is grounded in the inherent
    jurisdiction of the court to control its own processes and in s. 140(5) of the
Courts of Justice Act
, R.S.O. 1990 c.
    C.43, which gives the court express power to stay or dismiss a proceeding as an
    abuse of process.

[10]

In any event, we see no merit in this appeal. The
    motion judge applied the correct legal principles and the record amply supports
    his findings. Had it been necessary to do so, therefore, we would also have
    dismissed the appeal on this basis.

[11]

The respondent is entitled to her thrown away costs of
    this appeal, fixed in the amount of $20,000, inclusive of disbursements and all
    applicable taxes. These costs are to be treated as support for the purpose of
    enforcement.

E. A. Cronk J.A.

E. E. Gillese J.A.

J. MacFarland J.A.


