



COURT OF APPEAL FOR ONTARIO

CITATION: Sickinger v. Sickinger, 2018 ONCA 526

DATE: 20180608

DOCKET: C63525

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Penelope Kay Sickinger

Applicant (Respondent)

and

Ralph Thomas James Sickinger

Respondent (Appellant)

Gary S. Joseph, for the appellant

Dena N. Varah and Katharine Costin, for the respondent

Heard: June 6, 2018

On appeal from the order of Justice Faye E. McWatt of the
    Superior Court of Justice, dated March 6, 2017.

By the Court:

[1]

The appellant, Ralph Sickinger appeals the motion judges decision
    dismissing his motion to change and granting the respondent, Penelope
    Sickingers cross-motion.

(1)

Background

[2]

A brief history leading to this appeal and Mr. Sickingers motion to
    adduce fresh evidence will be helpful for context. In April 2008 issues of
    spousal and child support were decided for Mr. and Ms. Sickinger. Since then
    they have been engaging in litigation.

[3]

In 2009, Mr. Sickinger brought his first motion to change to reduce
    child support and reduce or terminate spousal support ordered in the April 2008
    order. A seven day trial took place in late 2011 and early 2012, resulting in
    the March 30, 2012 (the Final Order).

[4]

In April 2014, Mr. Sickinger commenced his second motion to change.
    Extensive case conferencing ensued. The case management judges directed the
    second motion for change was to be decided on a one-day motion, not at a trial.

[5]

In January 25, 2016, Backhouse J. noted in her endorsement that Mr.
    Sickinger was not paying the required child support. She cautioned that: If
    payment does not resume forthwith, then this Motion to Change should be
    dismissed.

[6]

On August 15, 2016, the case conference judge denied Mr. Sickingers
    request for a trial and ordered that Mr. Sickingers second motion for change
    was to be heard on affidavit evidence. It was also ordered that Mr. Sickinger
    was to provide current financial disclosure, including his tax returns, which
    the case conference judge noted; much of the disclosure had already been
    ordered to be produced. The motion was scheduled to be heard on December 13,
    2016.

[7]

On December 13, 2016, having failed to produce the ordered disclosure,
    Mr. Sickinger sought an adjournment of his second motion to change. Justice
    Harvison-Young, who was to hear the motion, adjourned it to December 22, 2016
    to give Mr. Sickinger "a last chance to comply with the outstanding court
    orders". He was, at the time, in serious default of his obligations to pay
    support and to make financial disclosure.

[8]

On December 22, 2016, Mr. Sickinger yet again sought a further
    adjournment of his second motion to change. Justice Glustein adjourned the
    motion to February 28, 2017, making it peremptory to Mr. Sickinger. He also
    ordered Mr. Sickinger, on a peremptory basis, to serve any further affidavit
    material by January 16, 2017 and stipulated that no further affidavit material
    could be filed thereafter. Mr. Sickinger did not appeal this order.

[9]

In spite of Justice Glusteins order, Mr. Sickinger late served a
    financial statement and 13 affidavits on Ms. Sickinger on January 17, 2017 (the
    January Affidivits). And on January 18th - the next day - he brought a Form 14B
    motion for leave for late service of his materials that were due on January 16,
    2017 to reflect that service was completed on January 17, 2017. The Form 14B
    motion was scheduled to be heard on February 28, 2017 along with Mr.
    Sickingers motion to change.

[10]

On
    February 2, 2017 Mr. Sickingers Form 14B motion to permit the admission of the
    January Affidavits was heard by Justice Corbett, who adjourned the motion to be
    heard orally by any judge. It was ultimately heard by the motion judge on Mr.
    Sickingers motion to change on February 28th.

[11]

On
    February 21, 2017, Mr. Sickinger purported to serve and file six affidavits in
    response to Mrs. Sickinger's affidavits (the "February Affidavits").
    The February Affidavits were served and filed contrary to Justice Glustein's
    order that Mr. Sickinger did not have a further right of reply.

[12]

Mr.
    Sickinger then filed a second 14B motion seeking an order that he be permitted
    the right of reply evidence. The February Affidavits did not contain Mr.
    Sickinger's income tax returns. This motion was also heard on the February 28,
    2017 motion to change.

(2)

The Motion Judges Decision

(i)

The Form 14B Motions

[13]

On
    February 28, 2017, on the second motion to change hearing, the motion judge
    first heard Mr. Sickingers Form 14B motions. In doing so, she assured the
    parties that she had read the February Affidavits:

I'm going to look at the materials, obviously, to decide
    whether or not I'm going to consider them in rendering my final decision on the
    motion, because there are two motions before me; not just the motion to change,
    but also this 14-B which has been ordered to be heard orally. I'm not saying
    I've decided the issue, but I'm going to certainly read the material with
    Justice Glustein's order in mind.

[14]

The
    motion judge considered the order of December 22, 2016 by Glustein J. She noted
    that, pursuant to that order, the deadline to file any additional materials was
    on January 16, 2017, which included his 2015 and 2016 tax returns. She found
    that Mr. Sickinger had not complied with the order. Instead he late filed his
    material  which did not include his 2015 and 2016 tax returns  and commenced
    a 14B motion to extend the time to file. The motion judge accordingly, and on
    the same day she heard it, denied Mr. Sickingers 14B motions. As a result, she
    concluded that any materials filed after that date would not form part of the
    motion to change and would be removed from the court file.

[15]

Mr.
    Sickinger has not appealed the Form 14B motion decision.

(ii)

The Second Motion to Change

[16]

We
    note here that it is in connection with this second motion to change that Mr.
    Sickinger asks this court on appeal to first adduce his 2015 and 2016 tax
    returns as fresh evidence and reconsider the motion judges decision in light
    of it. This is because, in part, in her March 6, 2017 endorsement, the motion
    judge found:

First and foremost, [Mr. Sickinger] has not produced his 2015
    Income Tax Return or his 2015 Notice of Assessment and there is no valid reason
    for it. He has not produced his 2014 Income Tax return and Notice of
    Assessment. He has not produced any income tax returns at all. This should end
    the matter, but I will add the following.

[17]

In
    any case, the motion judge dismissed Mr. Sickingers motion to change because
    he had not produced any income tax returns and provided no valid reason for the
    lack of disclosure. While the motion judge found this lack of crucial
    disclosure to be dispositive of Mr. Sickingers motion to change, as she indicated,
    she went on and made further observations and findings.

[18]

Regarding
    the increase in the parenting time from 40% to 50%, the motion judge found this
    was foreseeable at the time of the Final Order. Thus, there was no material
    change in circumstances. Further, she was not convinced that the two older
    children had lived with Mr. Sickinger for the summer months as he alleged. And,
    on the issue of spousal support, she again found there was no material change.

[19]

The
    motion judge granted Ms. Sickingers motion to change. She found that Ms.
    Sickingers financial situation had not changed, but Mr. Sickingers had. There
    was no basis, therefore, to change Ms. Sickingers imputed income in the
    circumstances. She found that Mr. Sickinger had not honoured his support obligations,
    and as a result, Ms. Sickinger has been unable to achieve self-sufficiency. She
    fixed Mr. Sickingers arrears of child and spousal support at $83,544.

(3)

The Appeal

[20]

We
    will first address Mr. Sickingers 2015 and 2016 tax returns he wishes to now
    file as fresh evidence. As we explain, we decline to admit it.

(i)

The Fresh Evidence

[21]

The
    proposed fresh evidence consists of Mr. Sickingers 2015 and 2016 income tax
    returns. It does not include other evidence that was put before a panel of this
    court on February 1, 2018 on a review application by Mr. Sickinger to set aside
    the order of a single judge denying Mr Sickinger an extension of time to
    perfect his appeal. On that occasion it was expressly not considered by this
    court or Mr. Sickinger and his then counsel as a motion for fresh evidence. The
    review panel admitted the evidence on the review because Mr. Sickinger and his
    counsel were alleging ineffective assistance of Mr. Sickingers previous
    counsel. It was relevant only to the test for extending time to perfect his
    appeal.

[22]

For
    purposes of this appeal, the first time the tax returns were ever produced in
    court was on February 1, 2018 before the review panel.

[23]

Mr.
    Sickinger's income tax returns were not included in any of the affidavits that
    were served, nor was there any reasonable explanation for their omission. Mr.
    Sickinger ignored disclosure orders for over two years. The first time his 2015
    and 2016 income tax returns were produced was months after the motion judges
    decision on his second motion to change. This was on November 9, 2017 when they
    were included in Mr. Sickinger's motion material to set aside or vary the order
    of a single judge of this court who refused to set aside the registrar's order
    dismissing his appeal.

[24]

Mr.
    Sickingers only explanation for the omission of his tax returns was to the
    panel of this court reviewing the refusal order of the single judge. In
    explaining why the tax returns were not put before the single judge, Mr.
    Sickinger and his then lawyer claimed ineffective assistance of previous
    counsel.

[25]

And
    even that, he says, was on May 12, 2017, some three months after the hearing of
    his second motion to change. There was no explanation for the reason for their
    omission prior to that, especially in the face of judges orders on August 15,
    2016 and December 22, 2016, and their omission in his January and February 2017
    affidavits.

[26]

He
    claims explanations for his delay were provided in affidavits filed on his
    second motion for change, which the motion judge refused to admit. That of course
    is material included in his 14B motion, which was dismissed by the motion
    judge; a decision Mr. Sickinger has not appealed.

[27]

For
    these reasons, we conclude that Mr. Sickinger has not met the test for
    introducing the proposed fresh evidence, namely, his 2015 and 2016 income tax
    returns. Accordingly, we will decide his appeal based only on the evidence that
    was before the motion judge.

(ii)

The Analysis of the Appeal

[28]

As
    it was with the motion judge, we believe the exclusion of the fresh evidence
    essentially disposes of the appeal. However, like the motion judge, we think it
    is appropriate to make some further comments.

[29]

Although
    Mr. Sickinger has not appealed the Form 14B motion, he describes the reasons
    for the motion judges dismissal of his motion to change as a result of his
    failure to provide his 2014 and 2015 Income Tax Returns and Notices of
    Assessment. As well, he asserts it was because he failed to provide evidence to
    justify the reduction of child support based on the 50/50 parenting. Finally,
    the motion judge found that his financial circumstances have not changed since
    the Final Order.

[30]

The
    essence of Mr. Sickingers arguments on appeal is that he was denied procedural
    fairness; first, because the motion judge prohibited him from filing his late
    filed January affidavits, although she allowed Ms. Sickinger to file her
    affidavits in response to them; and second, because she prohibited him from
    filing reply evidence. We reject this submission.

[31]

First,
    as has already been noted, Mr. Sickinger has not appealed the motion judges
    decision respecting his Form 14B motion. He was required to do so because this
    motion was independent from the motion to change and, as Corbett J. ordered,
    could be heard by any judge.

[32]

Nevertheless,
    contrary to what Mr. Sickinger asserts, the record shows that his late filed
    January Affidavits were before the motion judge and considered by her. Her
    comment in the oral endorsement: As a result, any material filed after that
    date shall not be part of the motion to change before me today and shall be
    removed from the court file, clearly only refers to Mr. Sickingers attempted
    reply evidence in his February Affidavits.

[33]

The
    motion judge made no error in dismissing his motion to file reply evidence late
    and in non-compliance with a court order. The exercise of her discretion will
    not be interfered with by this court absent an error on her part, which Mr.
    Sickinger has not established.

[34]

Second,
    the motion judge heard Mr. Sickingers motion to change almost three years
    after he commenced it. At the time she heard the motion, seven different judges
    dealing with various aspects of the proceeding, including case management, had
    all ordered Mr. Sickinger to produce relevant disclosure. Indeed, some of this
    crucial disclosure is the subject of the fresh evidence motion on this appeal.
    Again, the first time this evidence was ever produced in court was on February
    1, 2018.

[35]

The
    record reveals that far from experiencing procedural unfairness, Mr. Sickinger
    has benefitted significantly from indulgences by the courts. This allegation by
    Mr. Sickinger is wholly without merit. As Ms. Sickingers appeal counsel
    expressed it, this is about Mr. Sickingers continual failure to provide
    financial information; not procedural fairness. We agree.

[36]

It
    is worth repeating that rules for disclosure and the sanctions for
    non-compliance are "the centrepiece of the Family Law Rules". As this
    court described it in
Roberts v. Roberts
, 2015 ONCA 450, at paras.
    11-12:

The most basic obligation in family law is the duty to disclose
    financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle impedes the
    progress of the action, causes delay and generally acts to the disadvantage of
    the opposite party. It also impacts the administration of justice. Unnecessary
    judicial time is spent and the final adjudication is stalled.

[37]

As
    the history of this appeal illustrates, Mr. Sickinger has continually failed in
    his duty to disclose.

[38]

Regarding
    the balance of Mr. Sickingers grounds of appeal; again, we find them to be
    without merit. Specifically, his assertion that the motion judge erred in law
    when she found that, the increase in parenting at the time of the Final Order
    was foreseeable and therefore not a material change, is rejected. When the
    motion judges reasons are read as a whole and in context, it is abundantly
    clear that what she is saying is that it was contemplated. There was no error
    on her part.

[39]

The
    motion judge appropriately made her decision based on the record before her.
    Mr. Sickinger has failed to establish any reason for this court to interfere
    with her comprehensively reasoned decision. There are no errors that Mr.
    Sickinger can identify that are sufficient to allow this court the right of
    appellate review.

(4)

Disposition

[40]

For
    the reasons given, the appeal is dismissed. As agreed, Ms. Sickinger is awarded
    her costs of the appeal in amount of $15,000 inclusive of disbursements and
    HST.

Released: JM JUN 8 2018

J.C. MacPherson
    J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


