Court of Appeal for Ontario

Date: 2018-06-01 Docket: C64687 Judges: Watt, Huscroft and Trotter JJ.A.

Between

Liz Michelle Arrocha Respondent

and

Paul Harrison Appellant

Counsel

Paul Harrison, in person

Irving Frisch, for Liz Arrocha

Carol Smith and Ansuya Pachai, for the City of Toronto

Heard and Released

Orally: May 30, 2018

On appeal from the order of Justice Beth A. Allen of the Superior Court of Justice, dated November 28, 2017.

Reasons for Decision

[1] The appellant appeals the dismissal of his motion to change the amounts he was previously ordered to pay as child and spousal support. On a prior occasion a panel of this court had dismissed his appeal from the original support orders.

[2] Several months after the original support orders were made, the payee assigned her interest to the City of Toronto. The assignment itself contained no fixed-end date.

[3] It is undisputed that the appellant has made no support payments. In addition, he has not paid any costs orders made at trial or on appeal and, for that matter, by the judge whose decision he asks us today to reverse.

The motion judge found not only that the appellant had failed to pay any support and several outstanding costs orders, but also that he had made no good faith attempt to do so. After noting the seriousness of the appellant's unyielding failure to comply with these outstanding orders, the motion judge invoked Rule 1(8)(b) of the Family Law Rules to dismiss the motion to change.

Although the motion judge grounded her decision on Rule 1(8) of the Family Law Rules, she went on to consider the merits of the motion. She concluded that the motion was, at best, a poorly disguised attempt to relitigate issues already decided at a prior trial and upheld on appeal. She also rejected a claim made by the appellant for damages for fraud on the basis that it was statute-barred.

[4] In this court, the appellant contends that the motion judge erred:

i. in failing to find that the relief sought by the City of Toronto - dismissal under Rule 1(8) - was unavailable since the city's assignment had expired thus it had no status to appear or claim relief on the motion;

ii. in failing to properly consider the appellant's good faith offer to contribute reduced amounts to unpaid support orders; and

iii. in failing to give effect to the claim of fraud.

[5] In our view, this appeal fails.

[6] First, in the absence of any support payments, the assignee of those payments - the City of Toronto - maintains its party status to the extent of its financial interests.

Second, Rule 1(8)(b) of the Family Law Rules entitled the motion judge to dismiss the claim to vary because of the appellant's failure to abide by the support and costs orders made in prior proceedings in this case. The failures to pay were undisputed as was the absence of any evidence of any real good faith effort to make such payments. Those circumstances, in combination, constituted a sound basis for the motion judge to exercise her discretion as she did.

[7] Third, the allegation of fraud is at once irrelevant to the determination of the motion to change and statute-barred as a free-standing cause of action.

[8] The appeal is dismissed. Each respondent is entitled to costs which we fix at $2,500, inclusive of disbursements and all applicable taxes.

"David Watt J.A." "Grant Huscroft J.A." "G.T. Trotter J.A."