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Appeal Quashed: Support Obligations not Optional

5 minute read
Also authored by: Zachary Grace

Parties should think twice before deciding not to comply with support orders. That was made clear in Abu-Saud v Abu-Saud,[1] a scathing decision issued by the Ontario Court of Appeal (“the Court”). The panel, led by Chief Justice Strathy, characterized the husband’s non-compliance with court orders as “deliberate, relentless, and indefensible”, and granted the wife’s motion to quash his appeal of the spousal support order made at trial.

The parties separated in 2015 after 27 years of marriage. Ms. Abu-Saud had no income, and was left to depend only on family, social assistance and disability benefits to meet her financial needs. Mr. Abu-Said never voluntarily paid any amount of support, but at trial, he was ordered to pay $2,653 in monthly spousal support, plus retroactive support of $94,305.

Mr. Abu-Saud largely disregarded the trial judge’s order. He made reduced monthly spousal support payments, and failed to pay the full amount owing on account of retroactive support. His conduct compelled Ms. Abu-Saud to bring an interim motion pending Mr. Abu-Saud’s appeal for an order requiring compliance with the trial judgment. The interim motion was granted, and while Mr. Abu-Saud initially complied, he quickly reverted to making reduced payments.

Ms. Abu-Saud subsequently moved to quash the appeal on the basis that Mr. Abu-Saud was deliberately non-compliant with his support obligations. At that time, the spousal support and retroactive spousal support arrears totalled $23,901.

The Court stated that it was “common ground” that courts have jurisdiction to quash an appeal where the appellant has failed to comply with a support order.[2] However, whether that discretion should be exercised in a particular case depends on several factors, including, the wilfulness of the breach; the extent of the arrears; the excuse for the breach; and the efforts made to remedy the breach.

The facts “unequivocally” favoured quashing Mr. Abu-Saud’s appeal. He had been represented by legal counsel throughout the proceedings and had never expressed confusion regarding his support obligations. The $23,901 owing in spousal support arrears was an “enormous sum” for Ms. Abu-Saud, given her inability to work and lack of financial means. Mr. Abu-Saud’s excuse of impecuniosity was contradicted by all available evidence. Furthermore, his non-compliance was long-standing and deliberate. The Court emphasized that if Mr. Abu-Saud sought relief from his support obligations, the proper course was to bring a motion to stay or vary support, and not to unilaterally decide to pay a reduced amount.

It is worth noting that Ms. Abu-Saud first brought a motion to quash the appeal based on Mr. Abu-Saud’s non-compliance with the trial Order in the Spring of 2020.  It came before a single judge of the Court of Appeal who, after hearing submissions, rendered a decision in which she made it clear that compliance with court orders was mandatory and that non payment of the prescribed support, absent a stay of the support provision pending appeal, which would have to be obtained on motion, would not be tolerated.

The appeal justice gave Mr. Abu-Saud the opportunity to cure the default and avoid having his appeal quashed by paying up the spousal support arrears.  Mr. Abu-Saud paid up the arrears and the appeal was not quashed at that stage.

Mr. Abu-Saud was advised by the court to comply with the trial order pending the appeal being heard, given that it was expected that the appeal would be heard fairly quickly, rather than spending money seeking a stay of the spousal support order which may or may not have been granted in the circumstances.  Unfortunately, Mr. Abu-Saud chose to fall behind in the spousal support payments again, despite the clear caution from the appeal justice who had dealt with the earlier motion to quash.  When Ms. Abu-Saud’s second motion to quash went before the Court, it had no hesitation in quashing the appeal.  No doubt, the fact that Mr. Abu-Saud had been warned by the justice dealing with the initial motion to quash of the consequences for non compliance had an impact on the view taken by the Court with respect to the renewed default.

The Court found it to be an exceptional case justifying full indemnity costs. Ms. Abu-Saud was awarded her costs of both the motion to quash and the appeal, which totalled almost $40,000. Mr. Abu-Saud was also precluded from bringing any further proceeding until he paid Ms. Abu-Saud’s costs and satisfied his support obligations. The Court took note that Mr. Abu-Saud had recently initiated a motion to vary the trial judge’s order. It suggested that the Superior Court refuse to entertain any proceeding commenced by Mr. Abu-Saud on the same grounds.

Prior cases have established that a party who fails to comply with support orders does not have an automatic right to be heard by the court. In Mr. Abu-Saud’s case, the Court took a particularly hard-line. The Court’s patience for deliberate non-compliance with support orders appears to have been exhausted. Court orders are not suggestions; they are to be followed. The lesson is clear: litigants have two choices when faced with a court order.  Comply or move to vary.   If compliance with the order is not automatically stayed pending appeal, and spousal support is not stayed, then it is necessary to seek a stay from the court or a variance if compliance is a problem.  Spouses don’t get to decide unilaterally whether or not they will comply.

In the interest of full disclosure, Lerners LLP represented the appellant in this matter with a team led by William R. Clayton

 

[1] 2020 ONCA 824.

[2] The Court cited the Courts of Justice Act, RSO 1990, c. C.43 at s. 134(3) and Dickie v Dickie, 2007 SCC

8 at para 6.

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