Court of Appeal for Ontario

Citation: Hawkins v. Huige, 2012 ONCA 219

Date: 20120405

Docket: C54406

Before: O’Connor A.C.J.O., Gillese and Hoy JJ.A.

Between

Lisa Hawkins

Appellant

and

Martin Huige

Respondent

Counsel:

Lisa Hawkins, appearing in person

Martin Huige, appearing in person

Heard and released orally: April 3, 2012

On appeal from the judgment of Justice V. Paisley of the Superior Court of Justice, dated September 6, 2011.

ENDORSEMENT

[1] This is an appeal from an order varying child support. The appellant alleges that she did not receive proper notice of the variation motion and, thus, did not attend on the motion.

[2] Under Rule 25(19) of the Family Law Rules, the court below, which in this case was the Superior Court of Justice, has jurisdiction on a motion to change an order if an affected party was not present when the order was made because of inadequate notice. Without deciding the question of the jurisdiction of this court to hear such an appeal, it is clearly preferable that Rule 25(19) be followed. However, in the circumstances of this case, we are prepared to address the issues raised by the parties.

[3] The respondent asked, by way of preliminary motion, that we adjourn the appeal because the appellant has failed to pay two costs orders. The primary costs order is the one associated with the order under appeal, the second is for a modest amount. In these circumstances, we decline the respondent’s request for an adjournment.

[4] Even accepting that there may have been some technical defect in service, we are satisfied that the appellant had direct knowledge of the motion below and, therefore, we do not accept the appellant’s argument that there was inadequate notice.

[5] Accordingly, we dismiss the appeal. Nothing in this endorsement shall affect the right of either party to seek to vary the order below on the basis of fresh information. There will be no order as to costs.

“D. O’Connor A.C.J.O.”

“E.E. Gillese J.A.”

“Alexandra Hoy J.A.”