Court of Appeal for Ontario

Date: 2018-03-16 Docket: C64514

Between

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

Christine Johnson Applicant (Respondent)

and

Emmanuel Menezes Respondent (Appellant)

Counsel

David Harris-Lowe, for the appellant

Elizabeth Sachs, for the respondent

Hearing and Release

Heard and released orally: March 16, 2018

On appeal from: the order of Justice Michael R. Gibson of the Superior Court of Justice, dated October 10, 2017.

Reasons for Decision

[1] The principal issues in this family law dispute were the custody of the parties' 15-year-old daughter and child support.

[2] The appellant father was involved in a motor vehicle accident a month prior to the first case conference. He did not attend the case conference or file an answer or case conference brief. The case conference judge ordered the father noted in default and set the matter down for an uncontested trial. After the uncontested trial, the trial judge, on January 30, 2017, made an order granting the mother sole custody with the father's access at her discretion. He also granted child support based on the father's 2015 income retroactive to October 1, 2011.

[3] The father brought a motion to set aside the default judgment that was eventually heard on October 2, 2017. That motion was dismissed and the father now appeals to this court.

[4] The motion judge rejected the appellant's explanation for the default and the delay in moving to set aside the default judgment, noting that the motor vehicle accident had not prevented him from attending to his claim for statutory accidents benefits and his civil action for damages.

[5] The motion judge went on to conclude it was not in the interests of justice to set aside the final order to allow the appellant to submit an answer that "would make no significant changes to the existing order." In our view, the motion judge erred in arriving at this conclusion in one respect. The appellant has persuaded us that he has an arguable case on one issue, namely the determination of retroactive child support. The record before the trial judge included the appellant's income for the years 2013 through 2015. While his income in the years 2014 and 2015 was in the order of $100,000, his income for the year 2013 was $44,877. The trial judge used the appellant's 2015 income in setting the quantum of child support, which he made retroactive to October, 2011. It appears to us arguable that the trial judge failed to consider the evidence of the appellant's 2013 income in determining retroactive child support. We are not persuaded that the appellant has an arguable case on any other issue.

[6] We consider it in the interests of justice to set aside paragraph 3 of the order of the trial judge dated January 30, 2017, allow the appellant to file an answer on the issue of retroactive child support only, and allow the matter to proceed on that issue.

[7] The mother was substantially successful in this court and below and we fix costs accordingly. The mother shall be entitled to her costs of this appeal fixed in the amount of $6,000, and for the motion before Justice Gibson below in the amount of $3,000, both amounts inclusive of disbursements and HST.

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

"R.G. Juriansz J.A."

"B.W. Miller J.A."