



COURT OF APPEAL FOR ONTARIO

CITATION: Howard v. Martin, 2014 ONCA 309

DATE: 20140417

DOCKET: M43502

Gillese J.A. (In Chambers)

BETWEEN

Jane Howard

Applicant (Respondent)

and

Anthony Michael Martin

Respondent (Applicant)

Michael Stangarone, for the applicant

E.L. Nakonechny, for the respondent

Heard: April 15, 2014

Application for an extension of time in which to appeal from
    the order of Justice Victor Paisley of the Superior Court of Justice, dated
    February 25, 2013, and the orders of Justice Peter G. Jarvis of the Superior
    Court of Justice, dated June 24, 2013, and January 8, 2014.

Gillese J.A.:

[1]

Anthony Michael Martin moves for an extension of time to file his notice
    of appeal of the order of Paisley J., dated February 25, 2013 (the Paisley
    Order) and the orders of Jarvis J., dated June 24, 2013 (the Jarvis Order),
    and January 8, 2014 (the Costs Order).

[2]

Jane Howard, his former spouse, opposes the motion.

[3]

For the reasons that follow, the motion is dismissed.

BACKGROUND IN BRIEF

The Paisley Order

[4]

Ms. Howard brought an application for a divorce, and associated relief,
    in June 2012.  The application was uncontested and resulted in the Paisley Order.

[5]

Two terms of the Paisley Order are relevant to this motion.  The first
    is that Mr. Martin and Ms. Howard are to share equally in their two childrens
    special and extraordinary expenses.  The second gave Mr. Martin the right to retain
    the matrimonial home, provided that he made a specified payment to Ms. Martin. 
    The payment included a sum for equalization plus an adjustment to reimburse Ms.
    Martin for 50% of the increase in the parties joint line of credit that Mr.
    Martin had unilaterally made during the marriage.  The Paisley Order provided
    that if Mr. Martin failed to make the payment, the home would be listed for
    sale and sold by March 1, 2013.

[6]

It is important, for the purposes of this motion, to understand why the
    application before Paisley J. proceeded on an uncontested basis.

[7]

In June 2011, Ms. Howards lawyer wrote to Mr. Martin, suggesting that
    he retain counsel, provide his financial disclosure, and begin negotiation of a
    separation agreement.

[8]

In September 2011, she served him with Ms. Howards sworn financial
    statement and a disclosure brief.

[9]

After these and other unsuccessful attempts to obtain financial
    disclosure, Ms. Howard initiated the court proceeding in June of 2012.

[10]

Mr.
    Martin ignored the 30-day deadline to provide responding materials after being served
    with Ms. Howards application.

[11]

On
    September 14, 2012, Penny J. ordered Mr. Martin to:

·

serve and file his sworn financial statement and specific
    financial documentation by September 24, 2012;

·

serve and file his answer on or before 5:00 p.m. on September 28,
    2012; and

·

pay costs of $500.

[12]

The
    order also provided that if Mr. Martin failed to comply with it, Ms. Howard
    could proceed to an uncontested trial of the issues.

[13]

This
    order was made on consent.  However, Mr. Martin failed to comply with it.  He
    did not produce pay stubs, relevant bank statements, Visa statements, mortgage
    statements, or evidence of income tax arrears. He also failed to file his
    answer on time. His cheque for the costs bounced.

[14]

At
    a case conference held on October 12, 2012, Mesbur J. gave Mr. Martin another
    chance.  She ordered him to comply strictly with Penny J.s order by noon on
    October 26, 2012, failing which Ms. Howard could proceed with an uncontested trial.

[15]

Mr.
    Martin failed to comply with Mesbur J.s order. A few hours after the deadline,
    he delivered some material, much of which simply duplicated that previously provided. 
    He did deliver a financial statement, purportedly sworn in front of a
    commissioner for oaths.  However, the commissioners signature was an
    illegible star-shaped scribble and the name of the commissioner was not printed
    underneath.

[16]

As
    a result of Mr. Martins failure to comply, the application before Paisley J.
    proceeded on an uncontested basis.

The Jarvis and Costs Orders

[17]

Mr.
    Martin moved to set aside the Paisley Order on essentially the same grounds as
    he seeks to raise on appeal.

[18]

Justice
    Jarvis found that Mr. Martins health problems and alleged lack of financial
    resources did not justify his failure to comply with the various court orders
    and, in any event, ought to have been raised earlier in the proceedings.  In
    his view, Mr. Martins arguments about Paisley J.s treatment of the value of
    the matrimonial home amounted to an assertion that he would have raised other
    facts and made other arguments had he been able to participate before Paisley
    J.  However, the evidence was available and known to Mr. Martin before that
    hearing, and it was his failure to comply with court orders that led to his
    inability to participate.

[19]

The
    Jarvis Order, dated June 24, 2013, dismissed the motion.  The Costs Order
    required Mr. Martin to pay costs of $10,321.31.

After the Paisley Order

[20]

The
    Paisley Order enabled Mr. Martin to stay in the matrimonial home, if he made
    the specified payment to Ms. Martin.  He did not make the payment.  Thus, in
    accordance with the terms of the Paisley Order, the house was to be listed for
    sale.

[21]

Mr.
    Martin refused to list the house for sale.

[22]

Ms.
    Howard was forced to bring a motion in September 2013 so that the house could be
    sold (the sale order).  Contrary to the terms of the sale order, Mr. Martin failed
    to keep the house clean and presentable for all showings. Ms. Howard, along
    with six of her family members and friends, worked for about 200 hours to clean
    and repair the house for showings.  She also incurred costs of approximately
    $1,770 to make it presentable.

[23]

Mr.
    Martin also breached the sale order by failing to vacate the home on December
    6, 2013.

[24]

Ms.
    Howard had to spend additional legal fees to arrange for the Sheriff to remove Mr.
    Martin before the closing.  At that point it was discovered that Mr. Martin had
    failed to leave the property in broom swept condition, contrary to the terms
    of the sale order.  Ms. Howard spent an additional $1400 and she and her crew
    of family and friends spent another four days cleaning the house, to ensure
    that the house was in a state to close.

[25]

Mr.
    Martin has also failed to comply with four separate costs orders, totalling
    over $20,000, and continues to be in breach of the Paisley Order requiring him
    to pay one-half of the childrens extraordinary expenses. While he has provided
    some cheques towards these costs, most of them have bounced.

THE TEST FOR EXTENDING TIME

[26]

The
    test on a motion to extend time for filing a notice of appeal is well-settled. 
    The overarching principle is whether the justice of the case requires that an
    extension be given.  Each case depends on its own circumstances, but the court
    is to take into account all relevant considerations, including:

1.           whether the moving
    party formed a
bona fide
intention to appeal within the relevant period;

2.           the length of,
    and explanation for, the delay in filing;

3.           any prejudice
    to the responding party that is caused, perpetuated or exacerbated by the delay;
    and,

4.           the merits of
    the proposed appeal.

See
Enbridge Gas Distribution Inc. v. Froese
,
    2013 ONCA 131, at para. 15, and
Rizzi v. Mavros
, 2007 ONCA 350, 85
    O.R. (3d) 401, at para. 16.

APPLICATION OF THE TEST

1.       Intent to
    appeal

[27]

I
    accept, for the purposes of this motion, that Mr. Martin had the requisite
    intention.

2.       Length of,
    and explanation for, the delay

[28]

The
    Paisley Order is dated February 25, 2013.  Mr. Martin moved to have the Paisley
    Order set aside.  The Jarvis Order dismissed that motion on June 24, 2013.  Mr.
    Martin did not attempt to file his notice of appeal until February 27, 2014,
    some eight months after the Jarvis Order was made.

[29]

Mr.
    Martin offers two explanations for the delay in filing, following the Jarvis
    Order:  health problems and lack of legal representation.

[30]

In
    my view, neither adequately explains the delay.

[31]

Mr.
    Martin suffers from chronic pain syndrome and sometimes has difficulty
    concentrating. These difficulties are not new, as he had them throughout these
    proceedings.  The record shows that they did not interfere with Mr. Martins ability
    to engage in the litigation process.  Moreover, the record shows that Mr.
    Martin has continued to work throughout as a business writer, speaker and
    educator, and that he has led an active social life.  I do not doubt that the medications
    and other treatments he receives are of assistance to him.  I simply note that
    his medical problems do not excuse or explain his failure to file in a timely
    fashion.

[32]

As
    for the absence of legal representation, there is no evidence that Mr. Martin lacked
    the resources to retain counsel to help him with this appeal.  At various times
    throughout these proceedings, including this motion, he has had counsel.

3.       Prejudice to the responding party

[33]

It
    is an unfortunate reality that a respondent will often suffer some degree of emotional
    and financial stress when an appeal is delayed. In this case, however, the
    ramifications for Ms. Howards health go well beyond the norm and amount to
    prejudice.

[34]

Ms.
    Howard suffers from Type I diabetes, an irregular heartbeat, and Graves
    disease. She must inject herself with insulin at least five times a day. The medical
    evidence makes it clear that prolonging this litigation will impact negatively
    on her health.  Her family physician, Dr. S. Friedman, advises that the ability
    to manage Ms. Howards health problems and get her blood sugars into the
    recommended range is not possible when she is under extreme stress, such as
    that which is caused, or contributed to, by this litigation.  Dr. Friedman goes
    on to identify the long term consequences of poorly managed diabetes, which include
    kidney failure, heart disease, peripheral vascular disease, visual impairment,
    and increased susceptibility to infection.

[35]

Dr.
    Friedman has also recently advised Ms. Howard to work only part time, as
    opposed to full time.  Ms. Howard is unable to follow that advice because of financial
    pressures.

4.       Merits of the proposed appeal

[36]

The
    merits of a proposed appeal can be decisive on a motion to extend the time for
    filing.  Even if the other factors militate against extending time, the merits
    may be so significant as to justify extending time.

[37]

That
    is not this case.

a.

The
    Childrens Interests

[38]

The
    first proposed ground of appeal is that Paisley J. failed to consider the childrens
    best interests when he ordered that the matrimonial home be sold.  This ground
    has no merit.

[39]

It
    will be recalled that the Paisley Order permitted Mr. Martin to retain the
    matrimonial home.  However, he did not make the required payment with the
    result that the home was sold.  Thus, if it was in the childrens best interests
    that they remain in the home, the reason they could not was his actions and not
    an error in the Paisley Order.

[40]

I
    note that if the childrens best interests were served by remaining in the same
    neighborhood as the matrimonial home, that was achieved because Ms. Howard
    obtained rental accommodation for herself and the children very close to the
    matrimonial home.

b.


The
    line of credit

[41]

The
    second proposed ground of appeal pertains to the line of credit.  Mr. Martin
    says that he used the money in question to pay family expenses and that Paisley
    J. erred by finding otherwise.

[42]

This
    is a question of fact: did Mr. Martin use the money from the line of credit for
    his own purposes or for the family?  As a question of fact, it is reviewable on
    the standard of palpable and overriding error.  There is nothing in the
    materials before me to indicate any such error.  On the contrary, the record
    overwhelmingly supports Paisley J.s conclusion that Mr. Martin used the funds
    from the line of credit for his own purposes. A very brief review of key facts
    will demonstrate this.

[43]

In
    November 2012, while this litigation was ongoing, Ms. Howard went to her bank to
    obtain copies of documents related to the parties joint line of credit. She
    learned that in August 2007, Mr. Martin had forged her signature on bank and
    real estate documents to obtain an increase in the joint line of credit secured
    against the matrimonial home, from $175,000 to $373,607.  Mr. Martin then
    proceeded to take advances on that increased line of credit, beginning the
    following day when he transferred $60,000 to a TD Waterhouse account and
    purchased shares in four mining and mineral stocks totalling $74,326.20. Those
    investments did not exist at the date of separation.

[44]

There
    is nothing in this proposed ground of appeal.

c.

Value
    of the matrimonial Home

[45]

The
    third proposed ground of appeal pertains to the matrimonial home.

[46]

Justice
    Paisley valued the matrimonial home at $737,000.  He had before him Ms.
    Howards material which contained the opinions of two real estate agents,
    employed by different companies, as to the value of the home as of March 1,
    2011.  The house sold for $727,500.

[47]

Mr.
    Martin claims that Paisley J. should have used a value of $655,000 for the matrimonial
    home.  To the extent his claim is based on an appraisal that he had prepared on
    December 13, 2013  ten months after the Paisley Order, and five months after
    the Jarvis Order  I see nothing in it.  As fresh evidence, it is not clear to
    me that it would be admitted if the appeal were to be permitted to proceed. 
    Setting that to the side, however, Mr. Martin has pointed to no error in Paisley
    J. relying on the evidence before him.  The fact that Mr. Martin disagrees with
    the estimate and the fact that the home ultimately sold (subsequent to the
    Paisley Order) for a slightly lower price than the estimate does not make it a
    mistake for Paisley J. to have relied on the estimate.

[48]

Mr.
    Martin also claims that Paisley J. used an inflated value for the home because
    he brought the home to the marriage, therefore any increase in its value after
    the date of separation until the point of sale should have accrued solely to
    his benefit.

[49]

While
    I cannot say that there is no merit whatsoever in this claim, it is very
    tenuous indeed.  Ms. Howard put a very complete record before Paisley J., which
    included a 262 page affidavit.  The values in her Net Family Property Statement
    were all supported by documentary evidence.  The materials disclosed the facts upon
    which Mr. Martin relies for this claim.  If Paisley J. had any concerns about
    how to fairly treat the matrimonial home, he had methods for exploring those
    concerns.  He invoked none of them.  Further, this claim ignores any right that
    Ms. Howard might claim based on constructive trust principles.

[50]

Accordingly,
    I see very little prospect of success on this issue.  I note also that the dollar
    amount in question is small, particularly when viewed against all the
    outstanding amounts that Mr. Martin owes Ms. Howard.

The overall justice of the case

[51]

In
    my view, the overall justice of the case dictates that no extension of time
    should be granted.

[52]

As
    I have explained, there is no adequate explanation for the delay in filing the
    notice of appeal; an appeal would result in serious prejudice to Ms. Howards
    health; and the sole arguable ground of appeal is for a small sum and unlikely
    to succeed.  To these factors, I would add the following two considerations.

[53]

First,
    it is Mr. Martins own misconduct that resulted in the application before
    Paisley J. proceeding on an uncontested basis.  He was given a number of
    chances to obey the court disclosure orders and warned of the consequences of
    the failure to comply.  Despite that, he did not comply with those orders.  In
    the circumstances of this case, it would be contrary to the interests of
    justice to effectively undo the order precluding him from participating in the proceedings
    by now granting leave.

[54]

Second,
    Mr. Martin is asking this court for an indulgence.  When a person asks the
    court for an indulgence, it is appropriate to consider whether that person has
    respected prior court orders.  Mr. Martin has not demonstrated that respect. 
    On the contrary, as the brief recounting of events above shows, Mr. Martin has
    a history of repeatedly failing to comply with court orders and he continues to
    flout them to this day.

DISPOSITION

[55]

Accordingly,
    the motion is dismissed with costs to the responding party, fixed at 5,000,
    inclusive of disbursements and all applicable taxes.

Released:


