Court Cases & Orders

Self-Represented Father Files in Wrong Court (Plus Other Blunders); Court Throws Out Appeal

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Self-Represented Father Files in Wrong Court (Plus Other Blunders); Court Throws Out Appeal

A recent Ontario case underlines an important point: If you decide to represent yourself, don’t expect a court to automatically cut you any slack merely because you don’t know the law.

The facts in Schwilgin v. Szivy were nothing unusual: In the course of protracted matrimonial litigation, the now self-represented father had been unsuccessful in his bids to vary the court-ordered child support that he was required to pay, and to have $75,000 in unpaid child support arrears rescinded.

Unhappy with the court’s ruling against him, the father then decided to appeal. But in doing so he made a number of procedural errors: First, he filed the appeal within the correct deadline, but did so in the wrong court (the Divisional Court). In fact, he persisted in going ahead with that improper filing, even though his mistake was pointed out to him by the mother’s lawyer.

When the father nonetheless showed up in the wrong venue, the Divisional Court refused to transfer the matter to the proper place for the type of hearing he was asking for.

That ruling was rendered in May of 2014. The father decided he would appeal this ruling as well, but missed the 30-day deadline to do so. This prompted him to bring yet another motion to the Court of Appeal to extend the time to file his appeal. However, the father waited more than 1.5 years to take that next step.

Finally, the matter came before the Appeal Court, which was asked to give a ruling on whether to grant the father an extension. This required the Court of Appeal to consider the father’s various procedural missteps and especially his excuses for the 1.5-year delay.

First, the father blamed his filing mistake on the fact that he was merely a “lay person”. But in rejecting that excuse, the Court of Appeal wrote:

[The father] 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 [the prior judge] described [the father] as a “talented and experienced computer engineer.” He is a person of some sophistication.
The father also blamed his own long delay on the fact that the mother’s lawyer had not given consent to transfer the appeal to the proper court – even though that same lawyer had been the one to warn the father of his mistaken filing in the first place. The Appeal Court rejected this excuse as well. Indeed, the father admitted to the Court of Appeal that, back in 2014, the mother’s lawyer had tipped him to the fact that he was bringing the appeal in the wrong venue. His persistence in filing there nonetheless – and opposing counsel’s unwillingness to agree to allow the mistake to be remedied – could not now form a valid excuse. Nor could it be said that the Divisional Court made an error by refusing to transfer the matter to the proper venue when initially requested.

Noting that the mother would be prejudiced otherwise, the Court of Appeal refused to grant the father’s request to extend the time to appeal; it added that he was not only full of implausible excuses, but had shown a history of using court proceedings to delay the payment of the child support arrears he owed.

For the full text of the decision, see:

Schwilgin v. Szivy, 2015 ONCA 816, 2015 CarswellOnt 17887

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.