



COURT OF APPEAL FOR ONTARIO

CITATION: Schwilgin v.
    Szivy, 2015 ONCA 816

DATE: 20151124

DOCKET: M45679

Brown J.A. (In Chambers)

BETWEEN

Laszlo Schwilgin

Moving Party

and

Lori Anne Szivy

Responding Party

Laszlo Schwilgin, acting in person

Fredrick Schumann, appearing as duty counsel

No one appearing for the responding party

Heard: November 19, 2015

ENDORSEMENT

OVERVIEW

[1]

Laszlo Schwilgin moves for an extension of the
    time in which to file a notice of appeal from the May 20, 2014 order of
    Backhouse J. The lengthy history of this matrimonial litigation is set out in
    the May 20, 2010 reasons of Métivier J. (2010 ONSC 2857), the reasons of
    Backhouse J., and the July 2, 2015 reasons of the Divisional Court (2015 ONSC
    4292).

[2]

At the motion to extend the time to appeal, Mr.
    Schwilgin appeared in person and was assisted by duty counsel.  Ms. Szivy
    served and filed responding materials, but advised the court she could not
    afford to travel down from Ottawa for the motion.  She asked the court to
    consider her written materials.  I have done so.

[3]

Mr. Schwilgin and Ms. Szivy separated in 2002. 
    They have two children: Alexander, who is now 18 years old and suffers from
    autism, and Jennifer, who is 17 years old.  Prior to July 2013, the children
    lived with their mother in Ottawa.  Since then, they have resided with their
    father, most recently in Toronto.

[4]

After the children began to live with him, Mr.
    Schwilgin brought a motion to vary the child support obligations then in
    force.  That motion resulted in the May 20, 2014 order of the motion judge. 
    Mr. Schwilgin contends the motion judge made several errors in dismissing most
    of his motion to vary: she failed to relieve him of $75,000 in accumulated
    child support arrears that date back to at least 2006; she erred in the level
    of child support she ordered Ms. Szivy to pay on a go-forward basis; and she
    erred in holding that the child support payments to be made by Ms. Szivy be
    treated as an offset against the arrears owed by Mr. Schwilgin.

[5]

For the reasons set out below, I dismiss Mr.
    Schwilgins motion for an extension of time to file a notice of appeal.

ANALYSIS

[6]

The factors a court must take into account in
    considering a motion to extend the time to file a notice of appeal are set out
    in
Kefeli v. Centennial College of Applied Arts and Technology
(2002), 23 C.P.C. (5
th
) 35 (Ont. C.A.).

Intention to Appeal and Explanation for Delay

[7]

Although I am satisfied that Mr. Schwilgin formed
    an intention to appeal within the relevant time, I do not accept as reasonable
    his explanation for the delay in seeking to appeal to this court.

[8]

Mr. Schwilgin stated that he had filed a notice
    of appeal from the order of the motion judge within 30 days of the date of the
    order.  However, he filed the appeal with the Divisional Court.  That court
    quashed his appeal in July 2015 on the ground that it lacked jurisdiction
    because his claim to rescind arrears that was dismissed by the motion judge
    exceeded $50,000.

[9]

Mr. Schwilgin deposed that he appealed to the
    Divisional Court as a result of a mistake he made as a lay person.  In
    assessing that assertion, I must take into account two other factors.  First,
    in her 2010 reasons Métivier J. described Mr. Schwilgin as a talented and
    experienced computer engineer.  He is a person of some sophistication. 
    Second, I asked Mr. Schwilgin whether opposing counsel had told him his appeal
    to the Divisional Court was made to the wrong court.  Mr. Schwilgin confirmed
    that he had been put on notice he was appealing to the wrong court.  He
    persisted nonetheless.  The Divisional Court addressed his conduct in para. 6
    of its July 2015 reasons when it stated:

In this case the issue of jurisdiction was
    raised by the respondent in August 2014.  The appellant did not move
    expeditiously to bring his appeal in the proper forum.  In this regard we do
    not accept that the respondents failure to consent to the transferring of this
    appeal is a satisfactory explanation for the appellants failure to move with
    expedition to ensure that this appeal was brought in the proper forum.

[10]

The Divisional Court declined to exercise its
    discretion to transfer Mr. Schwilgins appeal to this court.  Mr. Schwilgin
    thereupon applied to this court for an extension of time to seek leave to
    appeal from the Divisional Courts order.  On August 21, 2015, Juriansz J.A.
    dismissed that motion, stating: It is apparent to me that the proposed leave
    application is devoid of merit.

[11]

Given that procedural history, I am not
    satisfied that Mr. Schwilgin has provided an adequate explanation for his
    lengthy delay in seeking to appeal to this court.  This weighs very heavily
    against granting his motion for an extension of time to appeal.

Merits of the Appeal

[12]

I am not persuaded on the evidence before me
    that there is merit in Mr. Schwilgins appeal.  He did not file a draft notice
    of appeal with his motion, so there is no concise identification of the errors
    he contends the motion judge made.  However, from his materials and submissions
    made at the motion, it is apparent that the primary argument Mr. Schwilgin
    wants to advance on an appeal is that the motion judge erred in not
    re-considering his financial ability to pay child support going back to 2006,
    when Mr. Schwilgin consented to the imputation of a certain income level to
    him. Had she done so, according to Mr. Schwilgin, his child support arrears
    would have been eliminated.

[13]

In support of his position, Mr. Schwilgin relies
    heavily on the decision of this court in
Difrancesco v. Couto
(2001), 56 O.R. (3d) 363 (C.A.),
which identified the factors
    to be taken into account in any decision to rescind child support arrears.  In
    that case, this court stated, at para. 26, that the dismissal of an application
    to rescind arrears is not an absolute bar to a future rescission of those same
    arrears provided there is a change in circumstances sufficient to warrant a
    variation in child support obligations.

[14]

In my view, Mr. Schwilgins proposed argument that
    the motion judge erred in refusing to rescind his child support arrears faces two
    very significant difficulties. First, in 2008 Mr. Schwilgin moved to vary the
    2006 consent child support order to reduce his child support obligations from
    $1,215 to $400 and to rescind all child support arrears.  The court dismissed
    his motion.  He brought a second variation motion in 2010 for similar relief,
    although that time for the elimination of any child support obligation, as well
    as the rescission of all arrears.  Métivier J. dismissed that motion, noting
    that Mr. Schwilgin had stopped paying the support to which he had consented.

[15]

Métivier J. conducted a lengthy review of Mr.
    Schwilgins employment history and earnings, going back to 2001, the year prior
    to the parties separation.  At para. 16 of her reasons she stated:  Mr.
    Schwilgin has claimed before each judge since 2002 that he is unemployed and
    looking for employment.  As noted, she found that Mr. Schwilgin is a talented
    and experienced computer engineer.  Métivier J. concluded, at para. 34, that
    there had been no material change in Mr. Schwilgins financial circumstances
    since the 2006 consent order, and [h]e is, in my view, determinedly and
    deliberately under-employed for his own purposes.

[16]

Mr. Schwilgin advised that the Divisional Court
    had dismissed his appeal from the order of Métivier J. (
2011 ONSC 5918)
.  In the circumstances of this case, that dismissal of his appeal
    would foreclose, for all practical purposes, any re-examination of Mr.
    Schwilgins financial circumstances prior to 2010.  He acknowledged that if his
    pre-2010 arrears were not changed, any reduction in post-2010 child support
    arrears would not bring his child support arrears down to zero, but would still
    leave him liable for somewhere between $20,000 and $40,000 in arrears.

[17]

A second weakness exists in Mr. Schwilgins
    proposed argument on appeal.  By the time of Mr. Schwilgins 2014 variation
    motion, a material change in circumstances had occurred  since July 2013 Mr.
    Schwilgin had been the custodial parent.  The motion judge varied the parties
    child support obligations in light of that material change in circumstances,
    terminating Mr. Schwilgins child support obligations and imposing support
    obligations on Ms. Szivy.

[18]

In respect of Mr. Schwilgins request to rescind
    his child support arrears, the motion judge informed herself about the
    principles stated by this court in the
Difrancesco
case: at para. 3.  However, she found that there had been no change
    in Mr. Schwilgins financial circumstances or ability to pay child support
    since the 2010 decision of Métivier J. Based on her review of the evidence, the
    motion judge concluded, at para. 7, that Mr. Schwilgin has gone to great
    lengths either to conceal his true income or to be deliberately underemployed
    in order to avoid his support obligations.  Her conclusion echoed that made four
    years earlier by Métivier J.

[19]

Mr. Schwilgin obviously disagrees with that
    conclusion.  But, nothing in the three substantive affidavits he filed on this
    motion  September 28, 2015, October 19, 2015 and the fresh evidence affidavit of
    November 13, 2015  would indicate the motion judge made any palpable and
    overriding error in reaching her conclusion that no material change had
    occurred in Mr. Schwilgins financial circumstances since 2010.

[20]

Consequently, I conclude that there is little,
    if any, merit to Mr. Schwilgins appeal.

Prejudice to the Respondent and Whether the
    Justice of the Case Requires Granting the Motion

[21]

Finally, I am not satisfied that the justice of
    the case supports granting the motion to extend.  In quashing his appeal from
    the order of the motion judge, the Divisional Court ordered Mr. Schwilgin to
    pay Ms. Szivy costs of $10,000.  He has not done so.  In open court, Mr.
    Schwilgin said he would not pay those costs because he contends he lacks the
    resources to pay them.

[22]

In her affidavit on the motion, Ms. Szivy
    deposed that Mr. Schwilgin owes her over $25,000 in costs from their
    matrimonial proceedings.  In her letter of November 16, 2015 transmitting her
    responding materials to the court, Ms. Szivy wrote:

I do not understand how Mr. Schwilgin is
    permitted to constantly bring motions and appeals without paying the costs of
    previous court orders.  It seems all the court does is order more costs, which
    I cannot collect.  He gets stern words and a slap on the wrist (costs), and I
    get a bill from my lawyer.  How is this fair?

[23]

That is a most legitimate question to ask. 
    Courts usually talk in terms of prejudice which cannot be compensated for by
    costs.  But, at some point, costs themselves become an inadequate form of compensation
    for prejudice, especially where the party on whom they are imposed refuses to
    pay them.

[24]

In this case, Mr. Schwilgin has not paid the
    costs ordered by the Divisional Court.  This court dismissed his motion for
    leave to appeal that decision.  In para. 7 of its reasons, the Divisional Court
    stated:

The appellant has used this appeal as a means
    of delaying paying the arrears in question and the costs ordered to the
    respondent.  Further, the appellant has a history of using Court proceedings in
    this way.  This has caused the respondent considerable prejudice.

[25]

In my view, to grant Mr. Schwilgins motion
    would cause further prejudice to Ms. Szivy, prejudice which a cost award
    obviously could not compensate because Mr. Schwilgin will not pay it.  The justice
    of the case favours dismissing Mr. Schwilgins motion.

DISPOSITION

[26]

Looking at these factors in their totality and
    considering the overall justice of the case, I dismiss Mr. Schwilgins motion
    to extend the time to appeal.

[27]

Ms. Szivy states she has incurred $1,000 in
    costs to respond to the motion.  I order Mr. Schwilgin to pay Ms. Szivy those
    costs in the amount of $1,000 no later than Friday, December 4, 2015.

[28]

Finally, the day following the hearing of the
    motion, Mr. Schwilgin filed with the court a letter to my attention setting out
    further arguments.  It was improper for Mr. Schwilgin to communicate with the
    court in that fashion.  In any event, I read his letter; it contained nothing of
    relevance. I therefore have not taken its contents into account in disposing of
    his motion.

David Brown
    J.A.


