



COURT OF APPEAL FOR ONTARIO

CITATION: Carpenter v. Carpenter, 2016 ONCA 313

DATE: 20160427

DOCKET: M44691

van Rensburg J.A. (In Chambers)

BETWEEN

Merle Carpenter

Applicant (Moving Party)

and

Jamie Lee Carpenter

Respondent (Respondent)

Gordon S. Campbell, for the moving party

Jamie Lee Carpenter, acting in person

Kenneth Younie,
duty counsel
for the respondent

Heard: April 6, 2016

ENDORSEMENT

A.

Introduction

[1]

This is a motion for an extension of time to appeal two orders made in a
    matrimonial proceeding. The first is dated November 13, 2013, and provided for
    the striking of the moving partys pleadings in the event that he did not pay
    $2,000 in costs within ten days. The second is dated April 17, 2014 and is a
    final order in an uncontested trial.

B.

Facts

[2]

The parties were involved in high-conflict matrimonial proceedings.
    There were interim orders, including an order of Minnema J. dated July 9, 2013,
    requiring Mr. Carpenter to pay Ms. Carpenter an amount for retroactive child
    and spousal support and $7,000 in costs.

[3]

The matter was scheduled for trial. On November 13, 2013 the parties
    appeared on a motion and counter-motion. Mr. Carpenter brought a motion for
    disclosure of certain financial documents. Ms. Carpenter brought a counter-motion
    asking that the trial date be adjourned, and for an order striking Mr. Carpenters
    pleadings if he failed to pay the amounts required by the Minnema J. order by
    December 15, 2013.

[4]

Although Mr. Carpenter was self-represented, he was assisted at the
    hearing of the motions by his former counsel, Mr. Coderre. Mr. Coderre
    confirmed that neither party was ready for trial and that an adjournment of the
    trial until the May 2014 court sittings was in order. Ms. Carpenter was
    represented by counsel.

[5]

After the motion to strike Mr. Carpenters pleadings had been addressed
    at some length, Mr. Coderre requested an adjournment of the motion so that
    Mr. Carpenter, who had not delivered any responding materials since being
    served ten days earlier, could respond with evidence about his efforts to pay
    the arrears. Ultimately, Pelletier J. adjourned both motions to be heard no
    later than January 17, 2014, and ordered Mr. Carpenter to pay $2,000 in costs
    within ten days, failing which his pleadings would be struck and the matter
    could proceed by way of affidavit for uncontested trial. If costs were paid and
    the motions were to proceed, Mr. Carpenter was to serve and file responding
    materials at least ten days before the motion return date.

[6]

Mr. Carpenter did not pay the costs ordered by Pelletier J. As a result,
    his pleadings were struck without further notice to him. On December 10, 2013,
    he made an assignment in bankruptcy.

[7]

In March 2014 the trial proceeded as an uncontested trial before
    Labrosse J., resulting in a final order dated April 17, 2014 (the Final
    Order).

[8]

The Final Order, among other things, provided for:

·

shared
    custody of the two children of the marriage (there is also a foster child but
    she was not addressed in the order);

·

payment
    by Mr. Carpenter to Ms. Carpenter of $143,500 representing 50% of Mr.
    Carpenters pension credits accumulated during the marriage, to be effected by
    way of a
Pension Benefits Division Act
, S.C. 1992, c. 46, Sch. II
rollover. The order required
    the plan and administrator to transfer $143,500 into a qualified retirement
    savings vehicle chosen by Ms. Carpenter, and stated the amount is based
    on [Mr. Carpenters] unsworn NFP calculation, being the best available evidence;

·

child
    support of $1,659 per month commencing April 1, 2014, based on Ms. Carpenters
    income being $20,000 and Mr. Carpenters income being $145,936, being his three
    year average for 2010 to 2012, and removing severance pay he received in 2012
    from his 2012 income;

·

spousal
    support fixed at $2,640 per month from April 1, 2014;

·

arrears
    of child support and spousal support due under the order of Minnema J. fixed at
    $25,357 and required to be paid at the rate of $500 per month commencing April
    1, 2014 until paid in full;

·

retroactive
    spousal support fixed in the amount of $36,923 to be paid by way of a transfer
    from Mr. Carpenters pension and effected by way of a
Pension Benefits
    Division Act
rollover;

·

payment
    of the outstanding costs orders of Minnema J. and Pelletier J.; and

·

payment
    of Ms. Carpenters costs of the application (with the portion of costs related
    to the issues of child and spousal support enforced by the Family
    Responsibility Office (FRO) as support forthwith).

C.

The Test for an Extension of Time

[9]

Whether to extend time to appeal is in the discretion of the court. The
    relevant factors are (a) whether the appellant formed an intention to appeal
    within the relevant period; (b) the length of the delay and the explanation for
    the delay; (c) any prejudice to the respondent; (d) the merits of the appeal;
    and (e) whether the justice of the case requires the extension. The governing
    principle is simply whether the justice of the case requires that an
    extension be given:
Rizzi v. Marvos
, 2007 ONCA 350, at paras. 16 and
    17.

D.

Positions of the Parties

[10]

Mr. Carpenter contends that the fact that he was self-represented meant
    that he did not understand the implications of having his pleadings struck. He
    submits that he did not learn of the Final Order until May 29, 2014, and thereafter
    brought the motion as soon as he was able to retain counsel. He has not moved
    forward with the motion in the past year because he was trying to settle with
    the respondent. Mr. Carpenter asserts that important issues were determined
    without his involvement, that there were numerous factual and legal errors,
    and he is suffering from the financial burden of the enforcement by FRO of the Final
    Order.

[11]

Ms. Carpenter resists the motion. She relies on the chronology of what
    occurred leading to the order to strike Mr. Carpenters pleadings, which
    included significant defaults in payment of child and spousal support. She
    notes that Mr. Carpenter has complied with few of the provisions of the Final
    Order, including the return of her items of sentimental value, and the transfer
    of the required part of his pension. She says that, although he was not at the
    uncontested trial, Mr. Carpenters evidence was considered by the court. She
    would be prejudiced if the appeal were to proceed, as she paid for legal representation
    in the proceedings below (and still owes her counsel money), but cannot afford a
    lawyer for the appeal and any future proceedings.

E.

ANALYSIS

(1)

Intention to appeal and explanation for delay

[12]

Mr. Carpenter contends that he always intended to appeal the orders and
    that he has a reasonable explanation for his delay. To a significant extent he
    relies on the fact that he has been self-represented.

[13]

I do not accept Mr. Carpenters claim that he failed to understand the
    implications of Pelletier J.s November 13, 2013 order because he was
    self-represented. He was in court that day with a lawyer. He had been served
    ten days earlier with a motion to strike his pleadings but had filed no
    responding materials. His lawyer only requested an adjournment after
    significant argument had been addressed to the very issue of whether his
    pleadings should be struck because of the outstanding arrears. The transcript
    reveals that almost the entire hearing was devoted to whether Mr. Carpenters pleadings
    should be struck, and the necessary consequence that the trial would proceed as
    an uncontested trial was fully discussed in his presence.

[14]

When the sum of $2,000 was proposed for Ms. Carpenters costs
    thrown away as a condition of the adjournment of the motion, his counsel
    demurred, but Mr. Carpenter objected to the amount. Although he contends he
    could not pay any amount for costs because he was about to become bankrupt, nothing
    was said at the hearing about his impending bankruptcy. In these circumstances,
    the uncontested trial that followed was not, as Mr. Carpenter states, a
    tactic adopted by Ms. Carpenters lawyer. He knew that if he failed to pay
    $2,000 in costs within ten days the trial would proceed on an uncontested
    basis.

[15]

With respect to the Final Order, I accept Mr. Carpenters evidence
    that he did not learn of it until he received a copy from the respondents
    counsel. That does not mean that he had no knowledge that such an order would
    be made, but simply that he did not know that the uncontested trial had taken
    place, and of its results, until May 29, 2014. Mr. Carpenter contends that
    he took steps promptly to try to retain counsel to launch an appeal. He
    contacted various lawyers, until in September 2014 he retained his present
    counsel, and after several months was able to initiate his motion to extend
    time in February 2015.

[16]

The fact that Mr. Carpenter was self-represented does not excuse his
    failure to comply with the necessary time limit or, once he was aware of the Final
    Order, to move promptly for an extension of time. Any participant in
    litigation, including a self-represented party, has a responsibility to
    familiarize himself or herself with the procedures relevant to the case:
McDowell
    v. Cavan-Millbrook - North Monaghan (Municipality)
, 2016 ONCA 193, at
    paras. 20 and 21. As such, the fact that Mr. Carpenter took several months to
    seek out and then retain counsel to bring this motion is an answer but not a
    full and satisfactory explanation for his delay.

[17]

The final period of delay is that of more than a year between when Mr. Carpenter
    first brought his motion before this court and when it was heard. On February
    11, 2015, the motion was adjourned so that the respondent could have the
    assistance of counsel. Mr. Carpenter says that thereafter he was trying to
    settle. Although the respondent says she never agreed to a suspension of time
    during this period, I accept that there is a reasonable explanation for Mr. Carpenters
    delay in bringing the motion back before the court.

[18]

In all the circumstances, however, I do not find that Mr. Carpenter
    moved promptly before this court to seek an extension of time to appeal the two
    orders in question. That said, delay is only one factor. I turn now to consider
    other factors relevant to the justice of the case.

(2)

The justice of the case

[19]

With respect to the merits of his proposed appeals, Mr. Carpenter says
    that striking pleadings is a remedy of last resort that ought not to have been
    imposed for his failure to pay a costs order. I accept that an order to strike
    pleadings is an exceptional order that should be made only as a last resort,
    and that it is preferable that the court hear from both sides when determining
    matrimonial proceedings. See
Chiaramonte v. Chiaramonte
, 2013 ONCA 641,
    at paras. 31-32.

[20]

That said, the
Family Law Rules
, O. Reg. 114/99 provide for
    such a sanction, which is frequently exercised where there has been a repeated
    failure to comply with court orders, especially for disclosure. And a motion
    judges decision to strike pleadings and deny participation at trial is entitled
    to deference if exercised on proper principles:
Chiaramonte
, at para.
    33. It is impossible to tell from the record before this court whether in all
    the circumstances it would have been appropriate for the motion judge to strike
    Mr. Carpenters pleadings for failure to comply with Minnema J.s order, or
    whether that automatic sanction for Mr. Carpenters failure to pay Ms.
    Carpenters costs thrown away was an appropriate exercise of the motion judges
    discretion.

[21]

As such, I am unable to say that Mr. Carpenters proposed appeal is
    entirely devoid of merit. If he were successful in setting aside the order
    striking pleadings, then it would follow that there was no legal basis for an
    uncontested trial.

[22]

There are, however, other important considerations in this case.
    Permitting an appeal at this stage would prejudice the respondent. She took the
    necessary steps to bring the litigation to a close, and she has no financial
    resources to retain counsel to respond to an appeal. More importantly, I am not
    satisfied that the Final Order has unfairly benefited Ms. Carpenter or resulted
    in any real injustice to Mr. Carpenter. While he argues a denial of procedural
    fairness in the uncontested trial process, there is nothing to suggest that the
    substantive results of the trial would have been any different had Mr.
    Carpenter participated.

[23]

Mr. Carpenter provides no evidence at all to support his contention that
    the trial judge made numerous factual and legal errors or that the trial
    judge erroneously calculated arrears and support payments or made a
    seriously flawed pension division calculation.

[24]

A review of the transcript discloses that the trial judge carefully
    considered all relevant evidence, including evidence favourable to Mr.
    Carpenter. Extensive reference was made to Mr. Carpenters available financial
    disclosure, including his income tax returns and an estimate of the revised
    valuation of his pension taken from his unsworn net family property statement.
    The trial judge imputed income to Ms. Carpenter, who was working inconsistently
    on a part-time basis. He took into consideration where the children were
    living, and the parties agreement respecting parenting. He considered the
    implications of Mr. Carpenters bankruptcy, including the trustees
    communication to Ms. Carpenters counsel that the pension was an exempt
    asset (which Mr. Carpenter does not dispute), and the fact that Mr.
    Carpenters obligations for the parties debts would be discharged. The trial
    judge awarded retroactive spousal support at the midpoint of the mid to low
    range of the Spousal Support Advisory Guidelines (SSAGs), in light of Mr.
    Carpenters significant debts prior to his bankruptcy. Going forward, he
    awarded spousal support at the mid range of the SSAGs, calculated using Ms.
    Carpenters imputed income and an average of Mr. Carpenters income over three
    years (excluding a severance payment), and based child support on the parties
    shared custody of the children.

[25]

Mr. Carpenters affidavits sworn in January 2015 and January 2016
    suggest that the child and spousal support awards are too high in view of his
    recent earnings, and his obligations in respect of the children. He also contends
    that the order made would not permit him the time and ability to travel with
    the children to the Northwest Territories, to be exposed to their aboriginal
    heritage. But changes in Mr. Carpenters income and the residence of the
    children, as well as any travel and holiday considerations for the children, can
    be addressed through a motion to change the Final Order.

[26]

Finally, I note that Mr. Carpenters affidavits emphasize that it was
    his preference to settle matters with Ms. Carpenter, rather than to proceed
    with litigation. That was what he told Pelletier J. in November 2013, and even
    in the past year he did not proceed with his motion for an extension of time
    while he tried to settle. Whether Mr. Carpenter would have preferred a
    settlement is not the issue. Ms. Carpenter was entitled to proceed to court,
    and once court orders were made they were binding on Mr. Carpenter, who was not
    entitled to disregard them in favour of further efforts at negotiation.

F.

Disposition

[27]

In all the circumstances, I have concluded that the justice of the case
    does not require this court to grant an extension of time for the moving party
    to appeal the subject orders. His motion is therefore dismissed, without costs.

K. van Rensburg J.A.


