“Faced with an appellant’s wilful refusal to honour a spousal support obligation, the court has several options. One option is to dismiss the appeal for noncompliance with the trial court’s order. That is the practice of the British Columbia Court of Appeal. The following passage from the reasons of Lambert J.A. in Elensky v. Elenskaya (1993), 1993 CanLII 1937 (BC CA), 50 R.F.L. (3d) 231 makes good sense:
In effect, Mr. Elensky is in breach of the order of Madam Justice Gill. He is in breach because of his own determination of what he is going to pay based on his own assessment of his needs.
In those circumstances, it has been the practice of this Court not to hear appeals unless a convincing explanation is given of the impossibility of compliance with the court order. No such convincing explanation has been given in this case. If Mr. Elensky is going to make his own decisions about what to pay without regard to the court order then there is no purpose in this Court striving to achieve the best balancing of the interests of justice for the parties only to find that Mr. Elensky substitutes his views of that balancing for any view we may reach.
In those circumstances, I would dismiss this appeal.
In Young v. Young (1976), 17 N.S.R. (2d) 375 the Nova Scotia Supreme Court Appeal Division adopted the same practice.
Another option for the court is to adjourn the appeal until the appellant either pays the arrears or demonstrates that he cannot pay them. Our court resorted to this option in Parkinson v. Parkinson (1973), 3 O.R. 293, where Gale C.J.O. said:
The Court has come to the conclusion that it ought not to entertain the appellant’s appeal until either the arrears owing by him are paid or we are satisfied that he cannot pay them. Accordingly, the appeal will be adjourned sine die to permit the appellant to fulfil one or the other of those conditions.
…
A third option for the court is to hear the appeal on its merits, despite the appellant’s wilful default. The court will be more likely to do this where the amount of arrears is small. See Ott v. Ott (1982), 1982 CanLII 1872 (ON CA), 39 O.R. (2d) 260 (C.A.).”