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Ontario and Canada
Appeal Court Dicta

Civil Contempt - Appeals

. Wilson v. Fatahi-Ghandehari

In Wilson v. Fatahi-Ghandehari (Ont CA, 2023) the Court of Appeal refused to consider an R59.06 set aside motion appeal where the mover had their pleadings struck below:
[14] Relatedly, through the r. 59 motion that Mr. Wilson is now seeking to appeal, he is attempting to participate indirectly in a trial that he was not permitted to participate in as the result of his pleadings being struck. As this court held in Lamothe v. Ellis, 2022 ONCA 789, at para. 3:
[t]his court will not typically hear an appeal by a party from an unopposed proceeding. Participation in an appeal after an uncontested trial has been ordered can circumvent that order, contrary to the interest of justice. [Citations omitted.]
. Caja Paraguyaya De Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Obregon

In Caja Paraguyaya De Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Obregon (Ont CA, 2022) the Court of Appeal held that in an appeal of an extreme civil contempt case, where the appellant had already been sentenced to two separate prolonged jail terms, a motion for release pending appeal was to be decided on the civil stay pending appeal standard rather than the criminal stay pending appeal standard [paras 7-25]. The court applied the usual RJR-Macdonald interlocutory injunction standard at paras 26-46.

. Cosentino v. Cosentino

In Cosentino v. Cosentino (Ont CA, 2017) the Court of Appeal asserts it's practice of not hearing appeals where the appellant is in current breach of court orders:
[8] This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders: see Dickie v. Dickie, 2007 SCC 8 (CanLII), [2007] 1 S.C.R. 346; Nowacki v. Nowacki, 2015 CanLii 41092 (Ont. C.A.); Martyn v. Martyn, 2010 ONCA 730 (CanLII); Burley v. Burley, 2009 ONCA 2 (CanLII), 244 O.A.C. 198; and Murphy v. Murphy, 2015 ONCA 69 (CanLII), 56 R.F.L. (7th) 257.
. Abu-Saud v. Abu-Saud

In Abu-Saud v. Abu-Saud (Ont CA, 2020) the Court of Appeal set out sanctions that apply to a party in default of a family support order, even though it is under appeal:
[17] I begin with the appellant’s failure to pay the support ordered in the judgment. Compliance with an order for support is not optional. Support payments are not stayed pending appeal. If the appellant seeks relief from this requirement, the procedure is to bring a motion to stay the support. The procedure is not to decide for yourself how much to pay. This court has repeatedly admonished payors who do not pay the support pending appeal. In Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257, the court refused to entertain submissions from a party who had not paid support pending appeal. To do otherwise “would be to reward his deliberate and willful misconduct”: at para. 6.

[18] The court may also refuse to hear an appeal when the appellant is in arrears until the arrears are cured. (See: Laskin J.A. in Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 OR (3d) 1 at para. 21, endorsed by the SCC in Dickie v. Dickie 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6; Brophy v. Brophy, 2004 CanLII 25419 (ON CA), 180 O.A.C. 389, at paras. 11-12; A.A. v. Z.G., 2016 ONCA 660; Siddiqui v. Anwar, 2018 ONCA 965).
. Dickie v. Dickie

In Dickie v. Dickie (SCC, 2007) the Supreme Court of Canada had the discretion to refuse to hear an appeal on grounds that the appellant was in contempt of the order appealed from:
[4] Laskin J.A., in dissent, was of the view that the court had a discretion to refuse to entertain Dr. Dickie’s appeal and that, based on the record showing continuing disobedience with court orders, it should have exercised that discretion. Hence, he would have adjourned Dr. Dickie’s appeal until Dr. Dickie had taken steps to comply with the court orders below. However, assuming the court was correct in entertaining the appeal, Laskin J.A. would have dismissed Dr. Dickie’s appeal, finding that neither order for security amounts to an order for the “payment of money” within the meaning of rule 60.11, and that Dr. Dickie was afforded procedural fairness.

[5] Mrs. Dickie appeals to this Court.

[6] In our view, the Court of Appeal had the authority to refuse to entertain Dr. Dickie’s appeal and, had it exercised its discretion as proposed by Laskin J.A. and for the reasons he gave, we would have found no basis to interfere with the result. However, the Court of Appeal having otherwise exercised its discretion and heard the appeal, this preliminary question is now moot.


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