





CITATION:
Ablett v. Horzempa, 2011 ONCA 633



DATE: 20111011



DOCKET: C53474 & C53475



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O., Sharpe J.A. and Cunningham A.C.J. (
ad hoc
)



BETWEEN:



Brian Robert Ablett



Moving Party (Respondent)



and



Mary Margaret Horzempa



Respondent (Applicant)



Brian Robert Ablett, in person



Daniela Bertossi, for the Ministry of Community Services
          Director

Christine Ziedins and Keith
          Taller, for the Family Responsibility Office

Mary Margaret Horzempa, in person



Heard:
September
          28, 2011



On appeal from the order of Justice Hugh K. OConnell of the
          Superior Court of Justice dated March 2, 2011 and the order of Justice
          Margaret P. Eberhart of the Superior Court of Justice dated March 7, 2011.



ENDORSEMENT



[1]

These appeals arise from a protracted family law dispute. The first appeal
    is from an order striking the appellants pleadings and dismissing the
    appellants motion to change a final order for spousal support. The second appeal
    is from an enforcement order pursuant to the
Family Responsibility and
    Support Arrears Enforcement Act
for payment of support arrears.

[2]

In his submissions before us, the appellant essentially attempted to
    re-litigate the entire dispute with his former common-law partner. The
    appellants position is that he never had his day in court because of the order
    striking his pleadings on the grounds that he failed to comply with the support
    orders, failed to pay costs and failed to make adequate disclosure. He insists
    that, contrary to the findings of the judges hearing the motions for interim
    and final support, the period of cohabitation was insufficient to justify a
    support order. Moreover, the appellant asserts that he lacks the means to pay
    the support that has been ordered because he filed for bankruptcy in 2008 and remains
    an undischarged bankrupt.

[3]

There is no basis for us to review or alter any of the outstanding
    orders or judgments apart from the two orders under appeal. The appellant did
    not appeal the order for interim support and while he filed a notice of appeal
    against the order for final support, he did not proceed with that appeal and it
    was dismissed. The two appeals before us do not provide the appellant with an
    avenue to collaterally appeal or attack the support orders.

MOTION

TO INTRODUCE FRESH EVIDENCE

[4]

The appellant also moves to introduce as fresh evidence on appeal an
    affidavit and other material that essentially relates to, and attempts to
    explain, aspects of the protracted matrimonial proceedings between these
    parties.

[5]

The motion to introduce fresh evidence is dismissed. The evidence
    proffered does not satisfy the test for admission of fresh evidence on appeal.
    The evidence consists of material that was available at the time the two orders
    under appeal were heard. It relates to earlier proceedings and has no direct
    relevance for bearing on these appeals and is proffered as part of the
    appellants effort to re-litigate issues and orders that are not subject to the
    present appeals.

GROUNDS OF APPEAL

Dismissal of motion to vary support

[6]

The appellant failed to persuade us that the motion judge erred in
    refusing his last-minute request for an adjournment, striking his pleadings and
    dismissing his motion to vary the support order. The motion judge found that
    the appellant failed to demonstrate that he could not satisfy the various costs
    orders made against them in the proceedings and noted that he had failed to
    appeal those costs orders. The motion judge clearly recognized the importance
    of allowing parties to present their case and advance their position. He also
    recognized that striking a pleading is a remedy of last resort. The motion
    judge concluded, however, that striking the appellants pleadings was
    appropriate because of the appellants wanton noncompliance with court orders
    and his egregious behaviour in attempting to escape the reach of the court. The
    motion judge observed that in the face of this mountain of historical
    non-compliance, the appellant had made absolutely no attempt to bring himself
    into compliance, or to adequately explain non-compliance.

[7]

Striking a pleading and denying party the right to be heard on a motion
    is a drastic remedy of last resort. We are satisfied, however, that the record
    in this case provided a sufficient basis upon which the motion judge could
    exercise his discretion. The record demonstrates a consistent and unyielding
    pattern of noncompliance with court orders and a total disregard for the
    process of the court on the part of the appellant. The appellant frequently used
    appeals as an instrument of delay; appeals were brought to buy time but then
    not pursued. We reject the appellants contention that he has been improperly
    or unfairly denied his day in court. He refused to follow the rules or to obey
    the orders of the court. In so doing, he chose not to avail himself of the numerous
    opportunities for meaningful participation that the ordinary process provides.
    In these circumstances we cannot say that the motion judge erred by striking
    his pleadings and dismissing his motion.

Enforcement order

[8]

We do not see any error on the part of the judge who made the
    enforcement order at the request of the Family Responsibility Office. The
    appellant had been given several adjournments to prepare his case and the judge
    did not err in refusing yet another adjournment. The appellant was not denied
    his day in court. He failed to avail himself of the procedural rights accorded
    by the
Family Responsibility and Support Arrears Enforcement Act,
including
    the right pursuant to s. 41(9) to demonstrate his inability to satisfy the
    support order.

Judicial bias

[9]

Finally, we see no merit in the appellants allegations of judicial
    bias. No doubt, through his repeated noncompliance with court orders, the
    appellant attracted disfavour from the judges of the Family Court. Disfavour so
    provoked, however, does not amount to judicial bias.

Conclusion

[10]

At the end of the day, we are satisfied that the appellant is the author
    of his own  misfortune. He has only been deprived of the right to fully
    participate in the proceedings because of his own failure to comply with court
    orders and to respect the Rules of Court and the deadlines they impose.

[11]

Accordingly, the appeals are dismissed.

[12]

If the respondents seek costs we will receive brief written submissions.

W. Winkler C.J.O.

Robert J. Sharpe J.A.

J.D. Cunningham A.C.J.
    (
ad hoc
)


