Disobedient Husband Loses Right to Appeal
In Canada, the Family just system generally mimics that of the civil and criminal realms: If you go to trial and get an unfavourable result, you have the right to appeal based on various principles and established legal grounds.
A litigant can lose his or her ability to pursue an appeal due to “bad behaviour” – most notably by refusing to comply with a previous court order. – Associate Lawyer Margie Primero Pimental
But what people may not realize is that in the colloquial sense, the appeal right is not “automatic”, nor is it irrevocable. A litigant can lose his or her ability to pursue an appeal due to “bad behaviour” – most notably by refusing to comply with a previous court order.
This was the situation in a case called Abu-Saud v. Abu-Saud. The former spouses, who had been married 27 years before separating, participated in a trial that focused on resolving issues around spousal support and equalization of Net Family Property. The wife, who left the long-term marriage with no source of income and no financial support, was the successful party at trial.
The husband decided to launch an appeal. However, up to that point he had persistently refused to comply with prior court orders mandating him to pay the wife spousal support and arrears, even though he admitted to having the financial means to fulfil those obligations.
While appearing before the Ontario Court of Appeal, the wife therefore asked to have the husband’s appeal of the unfavourable trial ruling quashed or dismissed, based on his continuing disobedience of prior support orders.
That Court readily agreed.
Although it was “common ground” that the Court had jurisdiction to quash or dismiss an appeal in the face of the husband’s persistent non-compliance, it cautioned that this was not an automatic outcome. Instead, in the course of making its decision, the Court was required to consider several factors, including: the amount of the arrears; the willfulness of the husband’s breach; any efforts he made to correct it; and any excuses he may have offered.
Looking at these factors in the current case, the Court of Appeal concluded that the wife had made out her case. Without justification, the husband had deliberately undertaken whatever step he could, to avoid his support obligations. This was despite the fact that the wife currently depended on assistance from family, social assistance, and Canada Pension Plan Disability Benefits. Moreover, the husband had never willingly or voluntarily paid any support to her, except when the court specifically ordered him to. His disobedience was “deliberate, relentless, and indefensible”.
The Court said:
[The husband] has admittedly, unabashedly, and, in our view, unjustifiably, breached the trial judge’s and this court’s orders. He has always been represented by counsel. He has never expressed confusion about what the court orders mean or what is required of him. Other than very recently when faced with the present motion to quash his appeal, he has never attempted to stay the trial judgment. He has breached court orders with the certain knowledge that [the wife] is disabled, unable to work, and in dire financial straits that are exacerbated by these proceedings and his failure to comply with court orders. According to [the wife] as of December 1, 2020, the spousal support and retroactive spousal support arrears totalled $23,901. This is an enormous sum for [the wife]. We draw the inescapable conclusion that [the husband] just chooses not to pay the amount of court-ordered spousal support to [the wife] because he simply does not want to do so.
[The husband] continued refrain of impecuniosity, rejected by the trial judge … and repeated again here, rings hollow. It stands sharply contradicted by the trial judge’s findings about his imputed income, as well as the financial documentation produced in these proceedings, his admissions concerning his assets, and his substantial withdrawal of his assets to further his lifestyle with his new spouse …
In granting the wife’s requested order without hesitation, the Appeal Court said:
[The husband] is inexcusably in breach of court orders that he pay spousal support to his former wife. He has doggedly and undeniably chosen to thumb his nose at court orders. We condemn his behaviour in the strongest terms.
In the end, the Court of Appeal not only quashed the husband’s appeal, but – after finding the wife should not be put to the “tremendous expense” – also ordered him to pay the full indemnity costs of both the wife’s successful motion and the appeal itself. This totalled almost $38,500, over and above the support arrears he already owed. As long as he remained disobedient, the husband was also precluded from moving his appeal, or any other further proceeding, forward.
For the full text of the decision, see:
Abu-Saud v. Abu-Saud, 2020 ONCA 824
