Court of Appeal for Ontario

Date: 20210923 Docket: M52509 (C69197)

Before: Strathy C.J.O., Pepall and Pardu JJ.A.

Between: E. Jonas, Applicant (Respondent/Moving Party/Responding Party)

And: K. Akwiwu, Respondent (Appellant/Responding Party/Moving Party)

Counsel: K. Akwiwu, acting in person Edosa Adams-Idode, for the respondent, E. Jonas

Heard: September 16, 2021 by video conference

On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated February 16, 2021, with reasons reported at 2021 ONSC 284 and 2021 ONSC 1187.

Reasons for Decision

[1] The appellant submits that the motion judge erred in determining the effective date for the retroactive variation of a child support order. He submits that the motion judge should have selected an earlier date.

[2] The motion judge found that there had been a material change in circumstances as a result of the appellant’s health challenges and the loss of his job and that a variation was appropriate. The next issue was the effective date of the variation.

[3] The motion judge rejected the appellant’s submission that the effective date should be October 31, 2019, when his former lawyer sent an email to the respondent giving notice that the appellant would be requesting a reduction. Instead, the motion judge determined that the applicable date should be October 1, 2020, the first day of the first month following the motion to change.

[4] The motion judge found that the lawyer’s email provided no evidence of the circumstances warranting a change and that the appellant was responsible for the inordinate delay in bringing the application. The motion judge was plainly aware of and sensitive to the appellant’s health challenges as well as the difficulties arising from the pandemic. However, he found as a fact that the delay was not justified and that it worked to the prejudice of the respondent and the children, who were depending on the enforcement of the accumulated arrears.

[5] On appeal, the appellant seeks to adduce fresh evidence to support his argument that the respondent was adequately informed of his change in circumstances and of his intention to seek a variation. The respondent also seeks to introduce fresh evidence and seeks disclosure from third parties.

[6] We would not accept the fresh evidence tendered by either party. The proposed fresh evidence does not meet two important aspects of the Palmer test: the evidence could have been adduced at trial with reasonable diligence and we are not satisfied that it would have altered the result: R. v. Palmer, [1980] 1 S.C.R. 759.

[7] The motion judge’s decision involved mixed questions of fact and law. The factual issues had to be resolved on contentious evidence and an evidentiary record that was less than perfect, in large measure due to the failure of the appellant to make full disclosure of his income. The appellant has demonstrated no palpable and overriding error in the motion judge’s assessment of the evidence and his determination of the factual issues is entitled to deference.

[8] On the issue of the effective date of the variation, the motion judge had regard to the prejudice to the respondent and the children caused by the appellant’s failure to bring his motion on a timely basis – this was a reasonable consideration, which the appellant’s submissions do not address.

[9] For these reasons, the appeal is dismissed, with costs to the respondent fixed at $2,500 inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”