Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231110 DOCKET: COA-23-CV-0756

Doherty, Pepall and Zarnett JJ.A.

BETWEEN

Peter Alexander Strutzenberger Applicant (Appellant)

and

Freida Marlene Strutzenberger Respondent (Respondent in Appeal)

Counsel: Peter Alexander Strutzenberger, acting in person No one appearing for the respondent

Heard: November 3, 2023

On appeal from the judgment of Justice Helen M. Pierce of the Superior Court of Justice, dated June 9, 2023, and reported at 2023 ONSC 3490.

Reasons for Decision

[1] On application by the appellant, Pierce J. varied the spousal support order made by Newton J. in February 2018. She reduced the arrears owing from the years following the order of Newton J. The appellant appeals, arguing that Pierce J. erred in not also extinguishing the arrears that were owing at the time Newton J. made his order in 2018. The appellant further argues that Pierce J. should have set aside the cost order made by Newton J.

[2] Dealing with the cost order first, Pierce J. had no jurisdiction to vary the cost order made by Newton J. This court has no jurisdiction to consider an appeal from the cost order of Newton J. The appellant appealed that order, but abandoned his appeal. There is no basis upon which this court can entertain a second appeal and set aside the cost order of Newton J.

[3] In respect of the arrears, Pierce J. accepted the order of Newton J. as correct when made in 2018. She accepted the appellant’s submission that there had been a material change in circumstances as of 2019. She adjusted the support payments ordered by Newton J. to reflect that material change. The appellant does not challenge those adjustments.

[4] The appellant submits, however, that Pierce J. should also have removed the arrears owing at the time Newton J. made his order in 2018. The appellant submits that Newton J. got the facts wrong, in no small part because of alleged misrepresentations by the respondent.

[5] The correctness of the order made by Newton J. in respect of arrears outstanding at the time of his order cannot be attacked by way of a subsequent motion to vary the order of Newton J.: Willick v. Willick, [1994] 3 S.C.R. 670, at pp. 687-88. The appropriate remedy was by way of appeal from the order of Newton J. In fact, the appellant did exactly that. He, however, chose to abandon that appeal.

[6] We see no error in the order under appeal. The appeal is dismissed. The respondent did not appear on the appeal or file any material. There shall be no order as to costs.

“Doherty J.A.”

“S.E. Pepall J.A.”

“B. Zarnett J.A.”