



COURT OF APPEAL FOR ONTARIO

CITATION: Stetler v. Stetler, 2013 ONCA 508

DATE: 20130802

DOCKET: M42695 (C55957)

Lauwers J.A. (In Chambers)

BETWEEN

Dudley Wyatt Herbert Stetler

Appellant (Responding Party)

and

Connie Christine Stetler

Respondent (Moving Party)

Paul D. Amey, for the moving party

Dudley Stetler, acting in person

Eric Morgan, as
amicus curiae

Heard: July 31, 2013

On a motion for security for costs on an appeal from the
    order of Justice Patrick J. Flynn of the Superior Court of Justice, dated August
    3, 2012, which is reported at 2012 ONSC 4466.

ENDORSEMENT

[1]

This is a motion by the respondent/moving party for an order under r. 61.06(1)
    of the
Rules of Civil Procedure
for security for the costs of this
    appeal.

[2]

When this motion was called for submissions,
Amicus
requested
    an adjournment on the basis that Mr. Stetler had had an inadequate amount of
    time to prepare. Counsel for the moving party advised the court that he had
    served virtually the same material on Mr. Stetler in May, 2013 and that he had
    also advised Mr. Stetler on July 24, 2013 that he would not agree to an
    adjournment.  Mr. Stetler filed a significant responding material and factum,
    and was prepared to argue. I refused the adjournment. As it turned out, Mr.
    Stetler knew the material and was both articulate and well-spoken.

[3]

The trial judge maintained the status quo in terms of custody and access.
    He ordered the appellant to pay to the respondent an equalization payment of
    $75,000, child support for two children in the total amount of $555 per month,
    and costs in the amount of $32,000. The appellant is now in arrears of child
    support in an amount close to $10,000.

[4]

The moving party submits that the appeal is frivolous and vexatious. On
    the issue of custody and access, the appellant sought week-about access. The
    trial judge continued the status quo. The appellant complains that the trial
    judge gave no weight to the report of Paul Ricketts, a social worker whose
    report was in the continuing record. Counsel for the moving party points out
    that the report was not filed in evidence at the trial and that Mr. Ricketts
    was not called as a witness. The appellant complains that his trial counsel
    failed to get the report into evidence as he instructed, and also failed to ensure
    that an alternate access schedule that would include shared holiday access was
    not put forward. These are not valid grounds of appeal.

[5]

With respect to child support, the appellant asserts that he is paying
    to the full extent possible given his bleak financial circumstances, which the
    trial judge failed to take into account. The appellant entered into an
    arrangement with the Family Responsibility Office only recently in which he has
    agreed to the required monthly payment and to pay an additional $100 per month
    towards the arrears. This is plainly not a particularly robust effort to deal
    with child support arrears.

[6]

The issue of the appellant’s true income occupied much trial time. An
    understandably frustrated trial judge was driven to impute an income to the
  appellant. At para. 27, the trial judge said:


I have not had the help of any expert witness but it seems to
      me that through two separate divorce proceedings, this man's character is
      defined. He will not tell the court what his income is and defies us to guess.
      He is not cooperating at all, nor is he following his duty at law to provide us
      with updated financial information. Moreover, I must draw an adverse inference
      from his failure to call his sister (the accountant) and his father who could
      have corroborated his evidence or given us the truth with respect to the amount
      of money that his father has paid him and whether or not he intends to collect
      on his mortgage debt. While there is no scientific reason to do this, I prefer
      to impute income of $36,000 per annum to the Applicant. He refused to help
      himself out or prove me wrong and it is his obligation to demonstrate what his
      income is. Moreover, he is about to take over the farm from his 75 year old
      father and there is no evidence of any physical or mental impairment to his
      working full-time and earning a decent living. In fact, he runs a small
      construction concern, receiving income, some of which he didn't declare.


[7]

The trial judge imputed an income of $36,000 per year to the appellant
    on the basis he had been working on his fathers farm full-time and did not
    call his father, Wyatt Stetler, as a corroborating witness concerning his income.

[8]

With respect to the equalization payment, the moving party asserts that
    the only issue with respect to the valuation of the matrimonial home was how to
    account the $38,500 second mortgage in favour of the appellants father that
    was placed on the matrimonial home on June 1, 1999. The trial judge found that
    the appellant had paid nothing on the mortgage in 13 years and that there had
    been no demand for payment to date by his father. While the appellant testified
    that he intended to repay the mortgage, the respondent testified to the
    contrary. Again Wyatt Stetler was not called to give evidence although he was
    present in the court house. The trial judge drew an adverse inference against
    the appellant because of that failure to testify.  In consequence, the trial
    judge discounted the amount of mortgage to nil in fixing the appropriate
    equalization payment.

[9]

The
    appellant also argued that counsel for the moving party had a conflict of
    interest because he acted for Wyatt Stetler in his matrimonial proceedings in
    the 1980s. This issue was not raised at any time before the appearance before
    me. Mr. Stetler claimed that he had tried to get his counsel to raise the issue
    but his counsel refused. This submission does not relate to the merits of the
    appeal.

[10]

The
    moving party submits that there is no evidence that the appellant owns assets capable
    of answering a costs award of this court, given the value of the matrimonial
    home less the various charges now registered against it. There is no equity in
    the home if the interests of Wyatt Stetler in two mortgages plus interest in
    the home are fully factored in.

[11]

Consistent
    with the authority of this court in
Schmidt v. The Toronto Dominion Bank
(1995),
24
    O.R. (3d) 1
, in my view, the moving party has demonstrated my
    satisfaction that there is good reason to believe that the appeal has no merit.
    The appellants litigation posture has been and continues to be recalcitrant. The
    moving party has also demonstrated that there appears to be good reason to
    believe that the appellant has insufficient assets in Ontario to pay the costs
    of the appeal.

[12]

The
    moving party seeks $12,000 in security for costs. I order the appellant to
    deposit $8,500 to the credit of this appeal with the court no later than
    September 15, 2013, failing which the appeal will be dismissed.

P. Lauwers
    J.A.


