Court of Appeal for Ontario
Judges: MOLDAVER, CRONK and BLAIR JJ.A.
Between:
ANGELA MARIE KORDIC Applicant (Respondent in the Appeal)
and
MICHAEL GERARD BERNACHI Respondent (Appellant in the Appeal)
Counsel: Robert N. Kostyniuk, Q.C. for the appellant Michael G. Cochrane for the respondent
Heard and endorsed: April 9, 2008
On appeal from the order of Justice Donald Ferguson of the Superior Court of Justice dated August 27, 2007.
APPEAL BOOK ENDORSEMENT
1We see no error in the motion judge’s discretionary decision to deny leave to the appellant to continue with his motion to change. Accordingly, his decision dismissing the appellant’s motion to change stands.
2In so concluding, we are satisfied that the motion judge properly considered the appellant’s history of chronic delays, non-compliance with multiple court orders and failure to make complete disclosure. On the basis of this history and the record before him, his findings of non-compliance were amply justified.
3The appellant claims that his arrears of child support are overstated for the period April 1, 2003 to November 5, 2006 because one of the children of the marriage resided with him during that period. He submits that he is entitled to adjudication of this alleged overpayment.
4The respondent does not contest the appellant’s ability to do so (provided he complies with Ferguson J.’s order), either on the appellant’s own motion or during the continuation of the respondent’s proceedings. We agree with the respondent’s contention but note that it is contingent upon the appellant making full disclosure of all information necessary, including his income during the requisite timeframe, to make the appropriate child support determinations.
5In the result, the appeal is dismissed with costs to the respondent in the amount of $18,000 plus G.S.T. and disbursements.