Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210927 DOCKET: C68805

Strathy C.J.O., Pepall and Pardu JJ.A.

BETWEEN

Seyar Khairzad Applicant (Appellant)

and

Ghizlane Erroussa Respondent (Respondent)

Counsel: James A. Brown, for the appellant John V. Grant, for the respondent

Heard: September 16, 2021 by video conference

On appeal from the order of Justice Lauren Bale of the Superior Court of Justice, dated March 31, 2020, with reasons reported at 2020 ONSC 1787.

Reasons for Decision

[1] The appellant, Seyar Khairsad, appeals from a March 31, 2020 order:

(i) dismissing his motion to change the consent decision-making and parenting time order made by Pazaratz J. on August 11, 2017; and

(ii) increasing the appellant’s monthly child support from $179 to $359 based on an imputed annual income of $40,000.

[2] The appellant also brings a motion for leave to adduce fresh evidence on his annual income for the years 2017, 2018, his employment status, and leasing arrangements.

[3] At the conclusion of their oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are those reasons.

Decision-Making Responsibility and Parenting Time

[4] The parties separated prior to the birth of their daughter, born in December 2016. She has always resided with the respondent. In 2017, the appellant was charged with assault of the respondent and entered into a peace bond. The motion judge found that the respondent is a victim of domestic violence at the hand of the appellant.

[5] The appellant submits that the motion judge erred by failing to award joint decision-making responsibility (previously referred to as custody) to the appellant and by refusing to increase the appellant’s parenting time (previously referred to as access) to the parties’ daughter.

[6] The motion judge declined to find a material change with respect to decision-making responsibility. By all accounts, the parties’ daughter was thriving under the primary care and decision-making authority of the respondent. The evolution of the appellant’s increased role in his daughter’s life did not amount to a change in circumstances warranting a change in the decision-making responsibility order. Furthermore, even if there were a material change, a joint decision-making arrangement would be unworkable. The motion judge noted the history of abuse, the ongoing difficulties in communications, and the appellant’s animosity and distrust of the respondent, all of which precluded any such arrangement.

[7] As for parenting time, before the motion judge, the respondent conceded that there had been a material change of circumstances since the August 11, 2017 order due to the daughter’s age and stage of development. The motion judge adjusted the appellant’s parenting time to consist of alternate weekends from Friday at 4 p.m. to Sunday at 7 p.m., every Tuesday afternoon from 4 p.m. to 7 p.m., and Tuesdays from 9 a.m. to 7 p.m. during the months of July and August on certain terms.

[8] The appellant asks this court to vary the decision-making order and invites us to adjust the parenting times contained in the order granted, saying the order failed to reflect the principle of maximum contact consistent with the best interests of the child.

[9] An appeal court should only intervene in a parenting order or family support decision where there is a material error, a serious misapprehension of the evidence, or an error in law: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 2; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12.

[10] We see no such errors in the motion judge’s parental decision-making and parenting time decision. She gave detailed and thoughtful reasons. She applied the correct legal principles and her findings and conclusions were fully justified on the record before her and anchored, as they ought to have been, in the best interests of the child in this case. We see no basis on which to interfere.

Child Support

[11] On the issue of child support, the appellant is a painting contractor and was 38 years of age at the time of the hearing. The motion judge observed that the 2017 order was silent on the quantum of the appellant’s income but that a monthly payment of $179 would correspond with an income of approximately $22,500 under the Child Support Guidelines. The 2017 order required the parties to provide updated annual income disclosure but neither did.

[12] On September 24, 2019, Chappel J. had ordered the appellant to make financial disclosure, but he failed to produce a sworn financial statement or any documentary evidence on his 2017, 2018 and 2019 income as ordered. Based on the failure to comply, the passage of time and the likelihood that the appellant’s income had not remained static, the motion judge found a material change in circumstances. She imputed an annual income of $40,000 to him based on a variety of factors including the number of hours he worked each week, his hourly rate, the availability of work, and collateral evidence of his lifestyle such as his rental of a Maserati motor vehicle. This imputation resulted in an order of monthly child support of $359.

[13] Again, we see no basis to interfere. Based on the record before her, the inferences and conclusions drawn by the motion judge were reasonable.

Fresh Evidence

[14] We also dismiss the request for leave to admit fresh evidence.

[15] On the issue of child support, the appellant failed to comply with both the 2017 and 2019 disclosure orders. It is not now open to him to seek to admit evidence available to him at the time of the motion to achieve a better result on appeal. As stated in R.F. v. J.W., 2021 ONCA 528, at para. 11, “the proper place for new evidence about changed circumstances --- if in fact the threshold of material change can be met --- is a motion to change before the court that has original jurisdiction, and not in the context of an appeal.” In any event the appellant’s tax returns did not reflect his earning capacity, for the reasons indicated by the motion judge.

[16] Although the criteria described in Palmer v. The Queen, [1980] 1 S.C.R. 759, are more flexible where an appeal involves the best interests of a child (see for example Goldman v. Kudelya, 2017 ONCA 300, [2017] W.D.F.L. 3127, at para. 25), the fresh evidence on the appellant’s new lease arrangements could not possibly have affected the parenting decision reached by the motion judge. We decline to grant leave to admit that evidence.

Conclusion

[17] For these reasons, the appeal is dismissed as is the motion for leave to admit fresh evidence.

[18] The parties were invited to make written submissions on costs. Having considered the submissions made, the appellant is to pay the respondent’s costs of the appeal fixed in the amount of $7,000 inclusive of disbursements and applicable tax.

“G.R. Strathy C.J.O.” “S.E. Pepall J.A.” “G. Pardu J.A.”