Court of Appeal for Ontario
Judges: Rouleau, Hourigan and Pardu JJ.A.
Between:
Melanie Elaine Gibson Respondent
and
Peter David Gibson Appellant
Counsel: Richard Parker, for the appellant Robyn Switzer, for the respondent
Heard: July 5, 2016
On appeal from the order of Justice Sherrill M. Rogers of the Superior Court of Justice, dated November 2, 2015.
APPEAL BOOK ENDORSEMENT
1The appellant appeals the order striking his motion to vary. He argues that he had insufficient notice of the motion date of October 14, 2015 and that the motion judge ought to have allowed the filing of his materials.
2We would not give effect to these submissions. The date of the motion had been set well in advance and the appellant had ample time to file his materials had he so wished. The appellant has failed to pay the costs of the trial, the fine ordered because of his contempt and the equalization. He has also failed to comply with his disclosure obligations. In light of these circumstances, we consider the motion judge’s order to be fully justified.
3We would however make one change to the motion judge’s order and delete the requirement in paragraph 2 that before he can bring a future motion to vary, he must prove that he has paid all support obligations up to January 1, 2014. The ability to pay the support amount, including arrears is the very subject matter of the proposed motion to vary. Other than this variant to the order, the appeal is dismissed. Given divided success there will be no order as to costs.