Court of Appeal for Ontario

Date: March 22, 2018 Docket: C64585

Panel: Hoy A.C.J.O., Juriansz and Miller JJ.A.

Between

Ali Javaheri Pey Applicant (Appellant)

and

Kristina Pey Respondent (Respondent on Appeal)

and

Director, Family Responsibility Office Respondent (Respondent on Appeal)

Counsel

Ali Pey, appearing as self-represented

Carol Craig, for the respondent, Kristina Pey

Deann Nixon, for the respondent, Director, Family Responsibility Office

Heard: March 16, 2018

On appeal from: The order of Justice Heather J. Williams of the Superior Court of Justice, dated October 10, 2017.

Reasons for Decision

[1] After a four-day trial in January 2016, the trial judge imputed annual income of $110,000 to the appellant father for the purpose of calculating support and ordered the father to pay ongoing spousal support and child support for his two daughters. He also ordered the father to pay an equalization payment to the mother. The father did not appeal the trial judge's order.

[2] Instead, the father brought a motion to change the trial judge's order and the order of Justice Doyle addressing access, dated September 25, 2015, as varied by the trial judge on a pre-trial motion heard at the beginning of trial. In response, the respondent mother brought a motion under rule 1(8)(c) of the Family Law Rules to strike the father's motion to change on the basis that the father had failed to obey court orders. The respondent, Director of the Family Responsibility Office (the "FRO"), brought a motion for a default hearing, to enforce the father's spousal and child support obligations under the trial judge's order.

[3] The motion judge allowed the mother's motion and struck the father's motion to change. She prohibited the father from bringing a further motion to change, without leave of the court, before all amounts owing under all court orders in the family law and the enforcement proceedings have been paid in full. The motion judge also granted the FRO's motion and ordered the father to pay lump sum amounts within specified time periods, in default of which the FRO is entitled to bring a motion for committal, on notice to the father, for the imprisonment of the father for up to 180 days.

[4] On appeal, the father asks that the motion judge's orders striking his motion to change and granting the FRO its requested relief be set aside.

[5] We are not persuaded that there is any basis for this court to interfere with the orders of the motion judge.

[6] The motion judge based her decision to strike the father's motion on his non-compliance with several court orders. As of the hearing date, the father owed more than $60,000 in child and spousal support, an equalization payment of more than $50,000, and significant court-ordered costs. The motion judge also found that the father had the means to make the payments that had been ordered and that "these court-ordered payments have simply not been a priority for him." She concluded that "it would not be appropriate to provide the father with an opportunity to request relief from this Court when he's chosen to ignore the orders of this Court which gave relief to the mother."

[7] The motion judge identified and applied the proper principles in deciding a motion to strike under rule 1(8) of the Family Law Rules. She committed no palpable and overriding factual error in the application of those principles. There is no basis to interfere with her exercise of discretion.

[8] In seeking relief, the FRO relied on the presumptions in s. 41(9) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 that the payor has the ability to pay the ordered arrears and to make the ordered subsequent payments. The FRO argued that not only had the father failed to rebut the presumption, but the evidence is clear that the father has the ability to pay the arrears.

[9] The motion judge agreed. In granting the order sought by the FRO, the motion judge wrote that "the father has the ability to pay the child and spousal support he owes but to date, he [has] chosen not to do so." That finding was amply supported by the record.

[10] Accordingly, the appeal is dismissed. The mother shall be entitled to costs of the appeal in the amount of $9,545, inclusive of HST and disbursements. The FRO shall be entitled to costs of the appeal in the amount of $1,645, also inclusive of HST and disbursements.

"Alexandra Hoy A.C.J.O."

"R.G. Juriansz J.A."

"Bradley Miller J.A."