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Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

A while ago I reported on one of several decisions in the ongoing litigation saga in Schwilgin v. Szivy, where the self-represented husband had made some procedural missteps in his divorce dispute with the wife. He had brought a series of appeals of judgments unfavourable to him, but was not always prompt in taking the necessary steps to do so.

At one point, he had missed the deadline for filing another appeal, and brought a motion to essentially ask the court for an extension.

The court had to consider whether, in light of the overall history of the matter and both parties’ conduct, the husband should be granted any leeway.

The main focus was on the fact that the man had not complied with numerous prior orders to pay costs: he owed the wife over $25,000 in connection with prior proceedings, yet he was coming before the court to ask for indulgences.

The court wrote:

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 [the husband] to pay [the wife] costs of $10,000. He has not done so. In open court, [the husband] said he would not pay those costs because he contends he lacks the resources to pay them.

In her affidavit on the motion, [the wife] deposed that [the husband] 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, [the wife] wrote:

I do not understand how [the husband] 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?

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.

The Appeal Court also quoted from a prior order of the Divisional Court, where the court had said this about the husband:

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

After noting the long history of the proceedings – plus the husband’s attempt to write to the court directly by letter, which was inappropriate – the Court of Appeal declined to grant him an extension, concluding that the “justice of the case” demanded it.

For the full text of the decision, see:

Schwilgin v. Szivy, 2015 ONCA 816 (CanLII)

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