



COURT OF APPEAL FOR ONTARIO

CITATION: Ainslie v. O'Neill, 2018 ONCA 858

DATE: 20181024

DOCKET: C65200

Feldman, Pepall and Pardu JJ.A.

BETWEEN

Margaret Kent Ainslie

Applicant

(Respondent in Appeal)

and

Kevin Phillip ONeill

Respondent

(Appellant in Appeal)

Robert Shawyer and Andrew Sudano, for the appellant

Margaret Kent Ainslie, in person

Caroline Brett and Jennifer Luong, for the intervenor
    the Attorney General of Ontario

Heard and released orally: October 19, 2018

On appeal from the
    order of Justice Kiteley of the Superior Court of Justice, dated March 1, 2018.

REASONS FOR DECISION

[1]

The appellant seeks to appeal the order of Kiteley J. dated March 1,
    2018, which dismissed the appellants motion for leave to bring a motion to
    change the final order of Harvison Young J., dated April 30, 2007, following a
    lengthy trial, with respect to child support, spousal support and s. 7
    expenses.

[2]

The order of Kiteley J. also stated that before the appellant brings any
    motion to change the final order, the appellant shall file proof with the court
    that he has complied with the judgment of Harvison Young J.

[3]

The appellant seeks to argue on the appeal that the order of Kiteley J.
    was unconstitutional.

[4]

The court raised with the parties by correspondence prior to the hearing
    whether the court could refuse to hear the appeal based on the Supreme Court of
    Canada decision in
Dickie v. Dickie
, [2007] 1 S.C.R. 346, where the
    court endorsed the dissenting reasons of Laskin J.A. in that case, and where
    the Supreme Court stated as follows in paras. 4 and 6 of its reasons:

4. Laskin J.A., in dissent, was of the view that
    the court had a discretion to refuse to entertain Dr. Dickies appeal and that,
    based on the record showing continuing disobedience with court orders, it
    should have exercised that discretion. Hence, he would have adjourned Dr.
    Dickies appeal until Dr. Dickie had taken steps to comply with the court
    orders below

6. In our view, the Court of Appeal had the
    authority to refuse to entertain Dr. Dickies appeal and, had it exercised its
    discretion as proposed by Laskin J.A. and for the reasons he gave, we would
    have found no basis to interfere with the result.

[5]

At the opening of the hearing, this court invited submissions from the
    parties as to whether the
Dickie
case should apply, and whether the
    court should exercise its discretion not to hear the appeal while the appellant
    remains in default of payment of the amounts ordered in the April 2007 judgment.

[6]

Counsel for the appellant submitted that this case should be
    distinguished from
Dickie
because the appellant has not been found in
    contempt. He also submitted that family law cases should be treated differently
    than commercial cases where there is default.

[7]

In our view, this is a case where the principle in
Dickie
is
    particularly applicable. Most recently Curtis J., after a four day enforcement
    hearing, made the following finding at para. 76(a):

The payor a) has repeatedly and intentionally avoided his
    responsibilities towards his children and his former spouse, over a great many
    years. He has demonstrated a long-term, wilful and deliberate disregard for his
    obligation to comply with court orders.

[8]

We have been advised today that the appellant has not complied with the
    order of Curtis J. following that hearing, the order being dated May 17, 2018.

[9]

In light of the long and continuing pattern of wilful default, we
    decline to entertain this appeal at this time and stay the hearing of the
    appeal until the appellant complies with the order of Curtis J., dated May 17,
    2018.

[10]

We
    note that Curtis J. included a provision at para. 85(f) which states:

This order does not limit or restrict the Director in pursuing
    any other available enforcement remedies for the enforcement of the support
    arrears or the ongoing spousal support payments due under the order.

[11]

That
    provision also remains in effect during the stay.

[12]

We
    also order $700 costs payable to Ms. Ainslie, which will also be payable as a
    condition of lifting the stay.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


