



COURT OF APPEAL FOR ONTARIO

CITATION: Sickinger v. Sickinger, 2017 ONCA 760

DATE: 20171002

DOCKET: M48230 (C63525)

Brown J.A. (In Chambers)

BETWEEN

Ralph Thomas James Sickinger

Moving Party

and

Penelope Kay Sickinger

Respondent

Brian Ludmer, for the moving party, Ralph Thomas James Sickinger

Glenn Smith, for the responding party, Penelope Kay Sickinger

Heard: September 20, 2017

ENDORSEMENT

I.        OVERVIEW

[1]

In this long-running family law litigation, the moving party, Ralph
    Sickinger, moves to set aside the May 23, 2017 administrative dismissal of his
    appeal for delay (the Dismissal Order). For the reasons that follow, I
    dismiss his motion.

II.       PROCEDURAL HISTORY

[2]

Ralph and Penelope Sickinger married in 1991. They have three children,
    now ranging in age from 17 to 23 years old. They entered into a separation
    agreement in 2007; a divorce was granted in 2008.

[3]

In 2009, Mr. Sickinger brought a motion to change. Prior to the trial of
    the motion, he was deemed to have filed an assignment in bankruptcy. A seven
    day trial took place in late 2011 and early 2012, resulting in the March 30,
    2012 final order of Perkins J.

[4]

That order was predicated on all three children residing with Ms.
    Sickinger. In 2013, the two oldest children changed their residence and stopped
    living with their mother.

[5]

In April, 2014, Mr. Sickinger commenced the present motion to change.
    Extensive case conferencing ensued. Starting at least with the December 19,
    2014 case conference before Kruzick J., the case management judges directed the
    motion for change to be decided on a one-day motion, not at a trial.

[6]

In November, 2014, Mr. Sickinger was discharged from bankruptcy. Around
    the same time Ms. Sickinger went on social assistance.

[7]

In her January 25, 2016 endorsement, Backhouse J. noted that Mr.
    Sickinger was not paying the required child support. She wrote: If payment
    does not resume forthwith, then this Motion to Change should be dismissed.

[8]

At the August 15, 2016 conference, the court ordered Mr. Sickinger to
    provide stipulated disclosure by October 14, 2016. Hood J. noted that much of
    the disclosure was the same as that previously ordered by case management
    judges in July and October, 2014, which Mr. Sickinger had not provided.

[9]

On December 13, 2016, Mr. Sickinger sought an adjournment of his motion
    to change on the basis that he would be physically unable to attend and other
    business related reasons. In her endorsement of that date, Harvison-Young J.
    noted Mr. Sickinger had only made three monthly support payments since the
    January 25, 2016 endorsement. Harvison-Young J. adjourned the hearing of Mr.
    Sickingers motion to change until December 22, 2016 to give him a last chance
    to comply with the outstanding court orders.

[10]

On December 22, 2016 Mr. Sickinger sought yet another adjournment of
his
motion to change. Glustein J. adjourned the motion to Febrary 28, 2107, but
    made the hearing peremptory to Mr. Sickinger. He also ordered Mr. Sickinger, on
    a peremptory basis, to serve any further affidavit material by January 16, 2017
    and stipulated no further affidavit material could be filed thereafter.

[11]

The motion to change initiated by Mr. Sickinger in April 2014 finally
    was heard almost three years later on February 28, 2017 by McWatt J., who
    dismissed the motion. In her endorsement dated March 6, 2017, McWatt J. wrote:

First and foremost, [Mr. Sickinger] has not produced his 2015
    Income Tax Return or his 2015 Notice of Assessment and there is no valid reason
    for it. He has not produced his 2014 Income Tax return and Notice of
    Assessment. He has not produced any income tax returns at all.

[12]

McWatt J. also found Mr. Sickinger had not demonstrated a material
    change since the final order of Perkins J. She terminated the child support for
    the two oldest children as of December 19, 2014; both had stopped living with
    their mother in 2013. McWatt J. increased the child support payable by the
    father for the third child effective June 2016 due to Mr. Sickingers increase
    in income. She also fixed Mr. Sickingers arrears of child and spousal support
    at $83,544.

III.      APPLICABLE TEST

[13]

The overriding consideration on a motion to set aside an order
    dismissing an appeal is the justice of the case, which entails a consideration
    of the merits of the appeal:
Akagi v. Synergy
Group
(2000) Inc.
, 2014 ONCA 731,
    at para. 8. In addition, factors analogous to those typically considered
    on a motion to extend the time to appeal inform a request to set aside the
    administrative dismissal of an appeal: (i) the explanation for not perfecting
    the appeal within the time stipulated by the rules; (ii) the length of and
    explanation for the delay in moving to set aside the administrative dismissal;
    and (iii) prejudice to the respondent.

[14]

More justification must be shown by a party moving to aside an
    administrative dismissal of an appeal than would have been required had the
    party earlier availed itself of its rights to move for an extension of time to
    perfect the appeal:
Langer v. Yorkton Securities Inc.
(1986), 57 O.R.
    (2d) 555 (C.A.), at para. 14.

IV.      APPLICATION OF THE TEST

Mr. Sickingers explanation for not perfecting his appeal in
    time

[15]

Mr. Sickinger filed his notice of appeal of the March 6, 2017 order of
    McWatt J. on March 22, 2017, together with a certificate respecting evidence.

[16]

The registrar sent the parties an April 24, 2017 Notice of Intention to
    Dismiss Appeal for Delay advising the appeal would be dismissed unless
    perfected by May 16, 2017. The residential address to which the registrar sent
    the notice was that listed by Mr. Sickinger on his present motion.

[17]

Mr. Sickinger did not perfect his appeal. The registrar issued the
    Dismissal Order.

[18]

As I read his affidavit, Mr. Sickinger offers two explanations about why
    he did not perfect his appeal in time. First, although he does not have a
    solicitor of record, he has retained a lawyer, Mr. Ludmer, to assist him with
    the appeal on a limited mandate. He contends that Mr. Ludmers trial schedule
    in March and May of this year prevented him from reviewing Mr. Sickingers
    appeal materials.

[19]

I do not accept that explanation. It inaccurately suggests Mr.
    Sickingers appeal materials were ready this past spring. However, in his
    August 18, 2017 affidavit Mr. Sickinger deposed that his appeal book and factum
    had not yet been reviewed by Mr. Ludmer. At the hearing of this motion, Mr.
    Ludmer submitted Mr. Sickinger required a further 10 business days to finalize
    his appeal materials. The record strongly suggests Mr. Sickinger is delaying
    the preparation of the materials needed to perfect his appeal.

[20]

The second explanation Mr. Sickinger advances for not perfecting in time
    is that he never received the registrars Notice of Intention to Dismiss for
    Delay. That position is difficult to reconcile with his statements that he
    asked Mr. Ludmers staff in April and May of this year to ascertain the status
    of a notice of approaching dismissal. It is clear from this evidence that Mr.
    Sickinger was fully aware of his obligation to perfect the appeal in a timely
    fashion and the possibility of its dismissal for delay.

[21]

In any event, as a result of inquiries made by Mr. Ludmers staff Mr.
    Sickinger knew by May 19, 2017 that a notice of intention to dismiss had been issued
    by the court requiring perfection of his appeal by May 16. Consequently, Mr.
    Sickinger knew a week before the May 23 Dismissal Order that his appeal was in
    jeopardy, yet he did not try to perfect it.

Mr. Sickingers explanation for not moving quickly to set
    aside the appeals dismissal

[22]

Mr. Sickingers appeal was dismissed on May 23, 2017. He did not file
    his motion to set aside the Dismissal Order until three months later on August
    24, 2017. He offers several reasons for the delay.

[23]

First, Mr. Sickinger deposes that upon learning his appeal would be
    dismissed, he sought Ms. Sickingers consent to an extension of time to
    perfect. On May 29, he learned she would not consent. He then decided to bring
    a motion to extend the time to perfect. He delayed preparing a notice of motion
    to extend until June 14, returnable on June 29; it was served on Ms.
    Sickingers agent on June 16, 2017. Mr. Ludmers office then notified Ms.
    Sickinger on June 26 that the motion would not be proceeding.  Mr. Sickinger
    does not explain why he abandoned his motion to extend.

[24]

Second, Mr. Sickinger suggested in his affidavit that draft appeal
    materials were ready for Mr. Ludmers review in August. Mr. Sickinger provided
    no explanation why they were not ready earlier and, for the reasons discussed
    earlier, I do not accept Mr. Sickingers suggestion that the materials were
    ready.

[25]

Third, in her March 6, 2017 endorsement McWatt J. called on the parties
    to file cost submissions. She released her costs reasons on May 12, 2017. Mr.
    Ludmer deposes he wants to appeal the costs order. He contends he cannot
    perfect his appeal of the March 6, 2017 order until the costs order has been
    taken out. He further deposes that as of August 18, 2017 the costs order had
    not been issued by the court.

[26]

That is not the case. The May 12, 2017 costs order of McWatt J. was
    issued on June 26, 2107. A July 6, 2017 email from Ms. Sickingers agent to Mr.
    Sickinger sent the issued order to Mr. Sickinger.

[27]

Taken together, these three reasons hold no water. Instead, they disclose
    a persistent strategy of foot-dragging by Mr. Sickinger. I conclude Mr.
    Sickinger has not provided a reasonable explanation for his delay to move to
    set aside the Dismissal Order.

The merits of the appeal

[28]

Mr. Sickingers notice of appeal and affidavit in support of his motion
    to set aside disclose four main grounds of appeal: (i) he was denied procedural
    fairness but not having a right to file reply evidence on a motion to change
    heard solely on affidavit evidence; (ii) the children should have been represented
    on the motion to change; (iii) the motion judge failed to consider all relevant
    factors with respect to the parties respective support obligations; and (iv)
    the motion judge failed to render sufficient reasons that would permit
    appellate review.

[29]

Based on the record before me, Mr. Sickingers grounds of appeal have
    little merit:

(i)           The
    December 22, 2016 endorsement of Glustein J. required all affidavits to be
    filed by January 16, 2017. No appeal was taken from that order. The peremptory
    nature of the order is quite understandable in light of Mr. Sickingers three-year
    delay in bringing on his own motion to change;

(ii)          Two
    of the children are now adults. They have not made any submissions on this
    motion that their rights were prejudiced by the March 6, 2017 final order;

(iii)         Mr.
    Sickingers assertion that the motion judge failed to consider all relevant
    factors with respect to the parties respective support obligations lacks
    details and evidentiary support. In making her order, McWatt J. relied, in part,
    on Mr. Sickingers failure to provide his 2014 and 2015 income tax information.
    It is telling Mr. Sickinger did not include that missing information in his
    materials on this motion to set aside; and

(iv)       The
    motion judge wrote a comprehensive endorsement explaining her decision. Her
    endorsement is more than sufficient to permit appellate review.

The prejudice to the respondent support recipient

[30]

Ms. Sickinger deposed she would be prejudiced if the Dismissal Order is
    set aside. She states support arrears now exceed $100,000, and that she ought
    not be required to continue in litigation in which [Mr. Sickinger] has refused
    to abide by the court process.

[31]

I accept her submission.

V.       DISPOSITION

[32]

I conclude the justice of the case requires dismissing Mr. Sickingers
    motion: the merits of his appeal are very weak; he has not adequately explained
    why he failed to perfect his appeal within the time required by the
Rules
    of Civil Procedure
; he has not justified his delay in moving to set aside
    the Dismissal Order; and his delay is prejudicing Ms. Sickinger.

[33]

For these reasons, I dismiss his motion to set aside the May 23, 2017
    order dismissing his appeal. Ms. Sickinger did not seek any costs of the motion,
    so there will be no order as to costs.

David Brown J.A.


