Dismissal Of UHNW Family Appeals For Non Compliance

Dismissal Of Family Appeals For Non Compliance

Dismissal Of UHNW Family Appeals For Non Compliance are rare but can occur. The concept is why would you let an Appellant who refused to obey past child and spousal support orders ask the Court to help them set aside an order they refused to obey without good reason? MacLean Law is a tier 1 UHNW family law and divorce boutique firm with an international and complex high net worth divorce focus and in today’s blog founder Lorne MacLean KC and IAFL international family law lawyer explains the rules.

MacLean Law’s front page news record setting judgment for $100,000 a month of spousal support and $16,000 for a single child monthly also involved an appeal that was dismissed for non compliance with support orders. We obtained a 25 million property settlement, over $6 million in lump sum support and a record awrd of special costs payable by the husband to cover all her legal fees totaling $1.5 million for our delighted client. We obtained a Dismissal Of UHNW Family Appeals For Non Compliance in this case after we applied to dismiss his appeal for his refusal to pay spousal and child support and security.

Dismissal Of UHNW Family Appeals For Non Compliance Tel: 604 602 9000

The recent case of Garousi v. Garousi, involved an appeal where the applicant/respondent objected to the Court hearing the appeal. The appellant failed to pay any child or spousal support, owing under a consent order, for over a decade. Held: application granted and appeal dismissed. The appellant failed to satisfactorily explain his persistent and ongoing noncompliance with the consent order. In the circumstances, the Court exercised its discretion to refuse to hear the appeal. The court refused to help an appellant who refused to obey its own court orders in a Dismissal Of Family Appeals For Non Compliance dispute.

The Court refused to hear the appeal of child and spousal support from the payor ex- father/husband because:

[13]         At the outset of the hearing, the Court requested that Dr. Garousi provide his response to the application about compliance. Despite ample notice from the respondent about her position, Dr. Garousi did not provide a reason why he could not comply with the support order in his responding affidavit. Significantly, he did not provide a reason, convincing or otherwise, explaining why he has not made any attempt to pay even a portion of the arrears or the ongoing child support obligation.

[14]         At the hearing this morning, Dr. Garousi stated he could not pay because of his dire financial situation and because he was concerned that the respondent would not be truthful about receiving payments from him.

[15]         Justice Donald, in Bullock v. Bullock, 2008 BCCA 162, explained the Court’s policy:

[3]        … This notice is in accordance with the Court’s policy expressed in such cases as Elensky v. Elenskaya, [1993] B.C.J. No. 2144, and Berry v. Berry, 2002 BCCA 129, [2002] B.C.J. No. 417.

[4]        In Berry, Lambert J.A. said for the Court:

[1]   LAMBERT J.A.: It is an important rule that a party who wishes to appeal from a spousal maintenance or child maintenance order should make the payments ordered by the Supreme Court of British Columbia pending the hearing of the appeal. In several cases the court has refused to hear an appeal where a maintenance order has been flouted.

[2]   Of course, the rule is not an absolute one, and in cases where the interests require it, usually the interests of justice as they affect the respondent, the court will hear the appeal.

[16]         It is within the discretion of the Court to refuse to hear an appeal from a support order with which the appellant has failed to comply: see Larkin v. Glase, 2009 BCCA 321 at para. 30; Hokhold v. Gerbrandt, 2015 BCCA 268 at para. 10.

[17]         Where the appellant has provided a convincing explanation (see e.g., Morey v. Morey, 2017 BCCA 439) or where it is in the interests of justice (see e.g., Berry at para. 2), the Court may exercise its discretion in favour of hearing an appeal despite the appellant’s non-compliance: see de la Fuente v. Breen, 2022 BCCA 424 at para. 10.

[18]         Dr. Garousi has not provided a convincing explanation for failing to make any payments from 2014 until December 2024. He asserts that his earnings were dramatically reduced after he left the University of Calgary and the respondent received the benefit of the properties pursuant to the Consent Order. He acknowledges that he should pay about $80,000 but has not taken any steps to transfer even this reduced amount to the respondent.

….

[23]         The respondent was required to raise their child with virtually no financial support from Dr. Garousi after the divorce. Their daughter remained a child of the marriage and the support obligations for her remain intact. Since 2013, he has not made any voluntary payments. Through a foreign enforcement proceeding made possible by Dr. Garousi move to a reciprocating jurisdiction, the respondent has recently received some assistance. Even with enforcement, the amount received is well less than 10% of the arrears. The respondent has been required to respond to the two applications in the Supreme Court and has made multiple appearances in this Court. She received costs orders following both applications and Dr. Garousi has failed to comply with the costs orders.

[24]         Dr. Garousi has not given a satisfactory reason why he continues in breach of the Consent Order.

[25]         I would grant the respondent the application and I would dismiss the appeal.