Court File and Parties

CITATION: Smith v. Robinson, 2009 ONCA 103

DATE: 20090204

DOCKET: C46783

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Juriansz JJ.A.

BETWEEN:

Jacqueline Dawn Smith

Applicant (Respondent in Appeal)

and

David Robinson

Respondent (Appellant in Appeal)

Counsel:

Martin E. Vamos for the appellant

Jerry J. Chaimovitz for the respondent

Heard and released orally: January 27, 2009

On appeal from the order of Justice Alex Pazaratz of the Superior Court of Justice dated February 9, 2007.

ENDORSEMENT

[1] The appellant appeals from a divorce judgment. Among other things, the trial judge awarded sole custody of the parties’ biological child to the respondent and determined that the respondent’s child from a former relationship was a child of the marriage.

[2] The appellant claims that the trial judge erred in failing to adjourn the trial for one month to permit him to retain new counsel to attend on his behalf. He claims that this was a complex case involving issues under sections 5 and 9 of the Child Support Guidelines and that he required counsel to assist him in addressing these issues. In addition, he claims that the trial judge erred by placing an onus on him to adduce evidence concerning the means of the biological father of his wife’s child and by failing to address s. 9 of the Child Support Guidelines in awarding support.

[3] We reject these submissions. The decision concerning whether to adjourn a trial is discretionary. This case involved custody issues and had been adjourned on one prior occasion at the appellant’s request. In relation to this adjournment request, the appellant initially requested an adjournment in December 2006 after his previous lawyer was removed from the record. Although that request and a subsequent further adjournment request were not granted, the appellant had not actually retained counsel as of January 25, 2007 when the trial started. Given the foregoing circumstances, and in light of the further fact that we are not satisfied that the appellant was prejudiced by the trial judge’s decision in any significant respect, we see no basis for interfering with the trial judge’s decision not to grant an adjournment.

[4] As for the s. 5 and 9 issues, the appellant had an opportunity to cross-examine the biological father of his wife’s child at trial. However, he asked no questions about the biological father’s ability to pay child support to counter the respondent’s evidence suggesting the biological father did not have the ability to pay. Further, the appellant has not demonstrated how the trial judge’s order triggers s. 9 of the Child Support Guidelines. In the circumstances, we see no error in the trial judge’s order.

[5] The appeal is dismissed. Costs of the appeal are to the respondent on a partial indemnity scale fixed at $5,000.00 inclusive of G.S.T. and disbursements.

“Janet Simmons J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”