COURT OF APPEAL FOR ONTARIO
Weiler, Sharpe and Rouleau JJ.A.
BETWEEN
Anab Yussuf-Mohamed
Applicant (Respondent in appeal)
and
Naleye Robleh
Respondent (Appellant in appeal)
Stephanie Simard, for the applicant
William Fuhgeh, for the respondent
Heard and released orally: November 18, 2014
On appeal from the order of Justice Robert N. Beaudoin of the Superior Court of Justice, dated December 17, 2013.
ENDORSEMENT
1The appellant husband entered into a separation agreement. When he did not comply with the terms of the agreement the respondent wife brought a motion to enforce the agreement which was granted. The appellant appeals and raises two primary grounds of appeal as to why the motion judge erred in enforcing the agreement. They are: 1) the motion judge erred in refusing to grant the appellant an adjournment of the hearing of the motion; 2) the motion judge erred in ordering enforcement of the separation agreement. In addition, the appellant raises numerous subsidiary grounds of appeal, seeks to introduce fresh evidence and seeks leave to appeal the costs of the motion.
Disposition
(1) Refusal to adjourn the motion
2In relation to the motion judge’s decision refusing to adjourn the hearing of the motion, the appellant complains of inadequate notice respecting the November 29, 2013 affidavit filed at the hearing of the motion. The affidavit complained of is an affidavit respecting arrears owing as of the day the motion was heard. In any event the motion judge did not rely on this affidavit, the motion judge used the prior affidavit showing the arrears only up to and including October 1, 2013 totalling $21,281.89.
3The appellant sought an adjournment to retain a lawyer on the date of the hearing of the motion. The motion judge refused to grant this adjournment. At the same time the motion judge granted the respondent a brief adjournment, of an hour or two, to respond to questions from the court respecting her submission that the court should enforce the arrears of child support by ordering security against funds held in counsel’s trust account generated from equalization. The appellant submits that this created an appearance of bias and unfairness.
4The appellant’s submissions respecting lack of natural justice, lack of notice and bias are without merit. The motion judge reviewed the history of the proceedings and found that the appellant had received ample notice of the hearing. In our opinion he made no error in this regard. Having regard to the appellant’s prior history of ignoring three court orders for disclosure and non-payment of support, the motion judge did not err in principle in refusing to adjourn the motion. The brief adjournment allowed to the respondent did not delay the proceedings and does not constitute unfairness or demonstrate bias. This ground of appeal is dismissed.
(2) Enforcement of the separation agreement
5In relation to ordering enforcement of the separation agreement, the appellant makes the following submissions. At the time the agreement was signed, the appellant was no longer represented by counsel whereas the respondent was. This created a power imbalance. The appellant was under extreme pressure because he was being audited by the Canada Revenue Agency and he was the subject of numerous complaints to the police in relation to the exercise of his access to the children. The provision for payment of support of the children in the agreement is ambiguous. Moreover, the respondent was receiving support from the biological father of the two eldest of the four children and this fact was not disclosed or sufficiently brought to the attention of the mediator.
6In relation to this latter submission, we note that the respondent’s tax returns filed as part of her financial disclosure suggest that she was receiving a small amount of child support for the two older children. The information was thus available to the appellant.
7While we agree that the clause respecting support of the children is ambiguous and may require interpretation, this is not a basis for declaring the entire agreement invalid. Nor are the appellant’s circumstances regarding emotional stress a basis for setting aside the agreement.
8The appellant also submits that the agreement is unfair because the two older children are children of a prior marriage for whom he should not be responsible for support and that one has withdrawn from parental control and is no longer eligible for support. We note that the Child Support Guidelines provide that the table amount for the two younger children of which he is the biological father is $764 a month based on the appellant’s disclosed income. In addition, one of the older children is autistic and the appellant did not submit that he did not stand in loco parentis to him at the time of the agreement.
9The support agreed to in the agreement is $1,000 per month. While the appellant may wish to move to vary the support order, his submissions are not a basis to impugn the validity of the agreement and the order enforcing it. This ground of appeal is also dismissed.
(3) Other matters
10We would not give effect to any of the subsidiary grounds of appeal raised.
11The motion to adduce fresh evidence is dismissed as the proposed evidence does not meet the Palmer test.
12We see no error in principle respecting the costs award on the motion and leave to appeal costs is denied.
13Accordingly the appeal is dismissed.
14The appellant also brought a motion to review the order of Benotto J.A. refusing to stay the monthly payment of child support for a few months pending the appeal. The appellant cross-examined the respondent for some seven hours on her affidavit responding to the motion. This was not proportionate. Having decided the appeal itself, the motion to review the order of Benotto J.A. is moot save with respect to reviewing the costs of the motion. We have heard the submissions of counsel that costs of the motion should have been awarded in his favour or alternatively that no costs should have been awarded. We would not give effect to this submission. The costs award of Benotto J.A. is affirmed.
15Costs of the appeal itself are to the respondent fixed in the amount of $4,782.84 inclusive of disbursement and all applicable taxes.
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“Paul Rouleau J.A.”
