



COURT OF APPEAL FOR ONTARIO

CITATION: Del Vecchio v. Del Vecchio, 2018 ONCA 334

DATE: 20180404

DOCKET: C64660

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Angela Del Vecchio

Applicant (Respondent)

and

Mark Del Vecchio

Respondent (Appellant)

M. Susan Balz, for the appellant

Karen Ballantyne, for the respondent

Heard: March 23, 2018

On appeal from the order of Justice Victor Paisley of the
Superior Court of Justice, dated October 13, 2017.

REASONS FOR DECISION

[1]

The
appellant appeals the order of Paisley J. dated October 13, 2017 striking his
pleadings and permitting the respondent to proceed to an uncontested trial. After
hearing from counsel for the appellant, we dismissed the appeal with reasons to
follow.  We now provide our reasons.

[2]

In
its essence the appellant is attempting to appeal the underlying order of Horkins
J. made July 27, 2017  which order was the basis for the Paisley J. order 
the subject of this appeal. The appellant did not appeal the Horkins J. order,
nor did he ever apply for any extension of the deadlines imposed by that order.
This contentious family law litigation has been ongoing for much longer than it
should primarily because of the appellants refusal to obey orders of the
court.

[3]

His
pleadings were struck initially in January 2016. That order was set aside in
April 2016 and the appellant given another chance. The equalization order that
had been made was set aside and the support order (based on an income of
$250,000) was changed from final to temporary. The appellant was required to
pay costs. There followed numerous conferences and motions  most of which the
appellant lost and was ordered to pay costs (see para. 22 of the respondents
factum).

[4]

In
July 2016 a second motion to strike for failure to make financial disclosure
was brought. Hood J. adjourned that motion to August 16, 2016 to enable the
appellant to retain new counsel and submit responding materials. He required
the appellant to pay costs of $5,000.

[5]

On
August 16, 2016 the respondents motion to strike came on before Myers J. who
convened a case conference and adjourned the motion on terms:

·

There was to be a two-hour settlement conference on September 21,
2016 and failing settlement the motion would proceed September 22, 2016

·

The appellant was required to file his most recent corporate
financial statement and tax return prior to the conference

·

The appellant was to provide an expert valuation of his interest
in Venture and an income report prior to September 21, 2016

·

The appellant was to pay costs of $2,500.

[6]

The
parties agreed to adjourn the settlement conference to December 9, 2016 on
terms that required the appellant to produce an income analysis, a business
valuation, an updated financial statement and corporate financial statement for
March 31, 2015 and March 31, 2016 six weeks before the new court date  by
October 28, 2016.

[7]

The
business valuation and income analysis, although dated August 5, 2016 were not
produced until November 15, 2016 and the income analysis was only current to
March 31, 2015. The balance of the material was late and incomplete.

[8]

Again,
Myers J. on December 9, 2016 made a further order requiring the appellant to
produce certain financial disclosure by certain dates, to pay ongoing child and
spousal support (based on an income of $362,000) and to pay support arrears. He
did not provide all required disclosure nor pay all of the support arrears. The
appellant neither appealed this order of Myers J. nor sought any extension of
time to comply with its terms.

[9]

On
February 13, 2017, the return date  the appellant had still not complied with
the December 9 order, yet Myers J. gave the appellant another chance  he had
to March 17, 2017 to provide certain required financial information  again he
neither appealed this order of Myers J. nor did he comply with it.

[10]

The respondent renewed
the motion to strike returnable May 16, 2017. On that date the appellants then
lawyer got off the record. The appellant produced an income report (one of the documents
he had been required to produce in several prior orders). Of note the report,
although dated February 9, 2017, was only produced May 5, 2017. In any event,
the appellant advised the court that he was not relying on that report.

[11]

He sought and was
granted an adjournment of the motion on very specific terms. He was to provide
a letter stating that he was not relying on the February 9, 2017 income report
if that remained his position and why  that letter was provided but after the
May 30, 2017 deadline Justice Horkins had imposed. He was required by June 30,
2017 to produce an income report on which he intended to rely  no further
extensions were to be granted. No such report was provided prior to the October
17 motion before Paisley J.  On July 20, 2017 the respondent renewed her motion
to strike  Horkins J. by endorsement dated July 27, 2017 ordered that the
appellants pleadings were to be struck unless he complied with certain terms
by September 1, 2017:

·

pay all support arrears

·

serve an expert income report that he relies on

·

pay outstanding costs award of $7,500 for May 16, 2017

[12]

On the appellants
failure to comply, the respondent could proceed to an uncontested trial. He was
ordered to pay the appellants costs in the sum of $5,000. This order was
neither appealed nor did the appellant seek an extension of time to comply with
its terms. He did not comply with its terms. It was in these circumstances that
the appellant, in September, brought a 14B procedural motion in writing that
resulted in the procedural order of October 13, 2017. Although not strictly
required to do so, as a courtesy the respondent served the appellant with
notice of the motion.

[13]

Only in response to
that motion, did the appellant finally take some steps. He filed an affidavit
of Karen Pritchard sworn September 8, 2017 in which the appellant attempts,
through his administrative assistant, to demonstrate there are no arrears of
support owing. He alleges a number of payments made by his company should be
credited to support payments he has been ordered to make.

[14]

Through what he
alleges is some mix up in the Superior Court, this affidavit he claims did
not find its way to Paisley J. and accordingly  Paisley J.s order is in error
for, in effect, having been made without consideration of this evidence. The
continuing record, which was before Paisley J. for this motion in writing, records
the fact that the affidavit was filed with the court and was therefore very
likely before the judge when he made his order. While the preamble in the order
doesnt refer to the affidavit, the draft order was prepared by the moving
partys lawyer before she was aware that any responding materials would be
filed. The appellant by the terms of the July 27, 2017 Horkins J. Order had no
right to notice of the procedural motion in any event and was served merely as
a courtesy. The moving party would have no reason to expect he would be filing
materials  particularly in view of his history of non-compliance.

[15]

The content of the
Pritchard affidavit is highly contentious  much of the content on its face
could not be considered support related. There was no opportunity given to
cross-examine on its contents and perhaps most importantly, this is nothing
more than an attempted collateral attack on previous support orders. It is also
to be noted that the appellant unilaterally reduced his monthly support payments
to $1400 per month after Justice Horkins July 27
th
order.

[16]

In these circumstances
we see no error in Paisley J. proceeding as he did. The appellant was given
numerous chances to comply with and meet his obligations  he simply refused.
Not until the very last minute did he take any steps to attempt to show he was
not in arrears in respect of the support orders. He still had not complied with
the obligations requiring financial production and unilaterally reduced his
support payments. He remains in serious violation of a number of court orders.

[17]

Even if Paisley J. proceeded
in the absence of the Pritchard affidavit, it would have made no difference.
All that affidavit does is record certain payments made by Venture the company
 on behalf of the respondent and the children.  There is no mention of any
payments by the appellant personally of the amounts he was required to pay by
court order.

[18]

In this court he seeks
to file as part of his appeal record, his affidavit sworn January 1, 2018. That
affidavit was not before Paisley J. and should not have been contained in the
appeal record.

[19]

Long after this appeal
was listed for hearing and one week before the appeal was to be argued, the
appellant filed a fresh evidence motion.

[20]

In the fresh evidence
motion he files his own affidavit sworn March 13, 2018  interestingly sworn a
day after his motion to set aside the Paisley J. order, the same order which is
the subject of this appeal, was dismissed by Kiteley J.

[21]

In this affidavit he
persists with his position that there are no support arrears owing because of
amounts paid by the company to the respondent on behalf of the children.

[22]

In this court, as he
did on March 1 before Kiteley J., the appellant says these materials were
intended to prove that I had in fact, directly/ or indirectly, paid Angela
considerably more than the ordered support  and that there were therefore no
arrears of support.

[23]

Similarly, as he did
before Kiteley J.  he annexes his new income report, which he argues now
make him fully compliant with the Horkins J. order.

[24]

In paragraphs 30-34 of
her reasons, Kiteley J. considers the Pritchard affidavit in some detail. Her
observations are apt and we reproduce them here:

Based on the affidavit of Pritchard I make these observations.
First, the affidavit was not from the Respondent. In a motion of such
importance, it was critical that the Respondent provide first hand evidence,
not rely on others.

Second, the affidavit did not provide any evidence that, before
September 1, 2017, the Respondent had complied with the July 27 order or
evidence that he had made any efforts to comply. Specifically, it did not
provide proof of payment of arrears owed as of August 1, 2017 which, as
indicated by Horkins J. at paragraph 62 were at least $68,149.30. It did not
indicate that he had retained an expert and the stage the expert was at nor did
it include an explanation for failing to meet the deadline of September 1,
2017. It did not reference two costs orders in the amount of $7500 and $5000.
In submissions, counsel for the Respondent conceded that the Pritchard
affidavit did not respond to the specifics of the order made by Horkins J.
Counsel conceded that the reader would have to read between the lines that the
evidence had any bearing on paragraphs 1(a), 1(c) and paragraph 4 of that
order.

Third, it demonstrates that the Respondent has no regard for
the orders that had been made requiring
him
to pay support. Based on
the contents of paragraph 3, this affidavit refers only to payments made by the
corporation.

Fourth, it was prepared by an administrative assistant who had
worked for the Respondent for approximately 6 months yet she had accumulated
intimate familiarity with the accounts, ledgers, receipts, payments and other
paperwork of Venture. As paragraph 4 of her affidavit indicates, some of the
documents and information go back to 2011 and have no bearing on arrears that
began to accumulate following the first order for support dated January 15,
2016. Some of the historic information may have been relevant to the motion
heard by Horkins J. I observe as well that in paragraph 33, Pritchard purported
to express an opinion about the capital needs of the corporation without any
qualifications that would permit her to express such an opinion.

For those reasons, if the affidavit of Pritchard had been
before Paisley J. when he considered the 14B motion, it would have had no
impact. I am confident that he would have made the order striking the
Respondents pleadings and directing an uncontested trial. Accordingly, I
decline to exercise my discretion pursuant to rule 25(19) to set aside the
order dated October 13, 2017.

[25]

We agree with those
observations and would adopt them.

[26]

Justice Kiteley then
goes on to consider the recent experts report the appellant also seeks to rely
on to demonstrate that he is now fully in compliance with the Horkins J. order.

[27]

Paragraphs 8, 9, 10
and 11 of his affidavit before this court are identical to paras. 38, 39 and 40
of his February 13, 2018 affidavit filed on the motion before Kiteley J.

[28]

The fact remains that
even in this court, the appellant remains non-compliant with the Horkins J. order.
He has obtained an experts report now  on his own time and terms  and long
after the deadlines imposed. Even now in its letter dated February 27, 2018 RSM,
the proposed expert for the appellant states:

certain components of our analysis are preliminary pending
receipt of further information. As additional information becomes available, we
may update our analysis and the conclusions may be impacted substantially. (Emphasis
added)

[29]

Paragraph 11 of the
letter is to the same effect.

[30]

With this caveat, the
report is in essence no report at all. His counsel advised the court that she
has a letter from RSM in which their report is finalized. This only on the
return of the appeal at the opening of argument.

[31]

The only reasonable
conclusion on all the evidence before this court is that the appellant simply
does not accept that he is in arrears of support. In his view, payments made by
his company, some going back a number of years before the support order was
made, constitute compliance with those orders. He is mistaken. He remains in
non-compliance to this date. He has had many, many chances to rectify his
situation but refused to do so. If court orders are to have any meaning they
must be respected.

[32]

There is no merit to
his appeal. The order of Paisley J. was reasonable and correct. We would not
interfere with it. The appeal is dismissed. Costs of the appeal to the
respondent fixed in the sum of $14,000 inclusive of disbursements and HST.

J.
MacFarland J.A.

Grant
Huscroft J.A.

I.V.B.
Nordheimer J.A.


