Court File and Parties

Citation: Allahham v. El Jammal, 2007 ONCA 778

Date: 2007-11-14

Docket: C46553

Court of Appeal for Ontario

Before: Cronk, Gillese and Armstrong JJ.A.

Between:

Mouafak Allahham Applicant (Appellant in Appeal)

and

Fadia El Jammal Respondent (Respondent in Appeal)

Counsel: Thomas J. Kelsey, for the appellant Audrey A. Shecter, for the respondent

Heard and released orally: November 7, 2007

On appeal from the order of Justice A.L. Harvison-Young of the Superior Court of Justice dated September 19, 2006.

Endorsement

[1] There is one issue on this appeal. The appellant argues that the motion judge erred by fixing the amount of his child support arrears in the sum of $27,171.28 as at June 2006. For the following reasons, we reject this argument.

[2] The appellant argued before the motion judge and again asserts before this court that, based on his documented mental health problems, he has been unable to work since 1997 and his income is confined to a monthly disability pension, with the result that he was unable to pay child support during the years in question. The appellant contends that the motion judge did not properly or adequately consider the significance of the evidence of his medical difficulties and the impact of those difficulties on his ability to pay child support. We disagree.

[3] The motion judge was clearly aware of the medical evidence in question and of the fact of the appellant’s receipt of a disability pension. She was also aware, however, that he had paid no child support for ten years even in those years when his income was sufficient to permit him to do so.

[4] The appellant bore the onus of satisfying the motion judge that his admitted arrears of child support should be rescinded based on hardship. In the end, the motion judge found the appellant’s evidence of hardship unreliable and insufficient to meet this burden. The appellant sought no adjournment to permit him to furnish additional or other evidence of hardship to the motion judge, nor did he suggest that he was in a position to do so if time was afforded to him for that purpose. On the record before her, therefore, the motion judge was entitled to conclude that the appellant had not discharged his evidential onus to establish hardship and, consequently, to find that the arrears of child support should be fixed. There is no challenge by the appellant to the quantum of the arrears as fixed by the motion judge.

[5] We have been informed that ongoing child support payments have apparently now commenced, effective in August or September 2007.

[6] The appeal is therefore dismissed. The respondent is entitled to her costs of this appeal, fixed in the amount of $5,000, inclusive of disbursements and GST. These costs are to be treated as a support order for the purpose of registration with and enforcement by the Financial Responsibility Office of Ontario. We note that the appellant’s counsel made no objection to this direction.

"E.A. Cronk J.A."

"E.E. Gillese J.A."

"Robert P. Armstrong J.A."