Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20230626 DOCKET: M54315 (COA-23-CV-0397)

Zarnett J.A. (Motion Judge)

BETWEEN

Ashley Janzen Applicant (Appellant/Moving Party)

and

David Cook Respondent (Respondent/Responding Party)

Counsel: James A. Brown, for the appellant/moving party Andreus Snelius, for the respondent/responding party

Heard: June 21, 2023

Endorsement

[1] In the Superior Court, the appellant brought a motion to change the parenting time and the amount of child support payable by the respondent under a separation agreement dated June 30, 2011. Prior to the hearing, parenting time was settled. On March 10, 2023, after a 10-day hearing, Smith J. ordered the respondent to make a one-time top-up payment of $1,168 for 2020 child support, but otherwise dismissed the application on the basis that no material change in the respondent’s income had been established. The trial judge considered, and rejected, arguments that the respondent had failed in a material way to make proper financial disclosure in the proceedings.

[2] The appellant has a pending appeal to this court from the trial judge’s decision.

[3] The appellant now moves for orders requiring the respondent to produce various categories of documents: snow removal contracts from 2016; bank statements, cheques, loan documents, business expenses, invoices, cash receipts, and motor vehicle expense documentation for the 2021 calendar year; and the loan application for recently purchased trucks and the source of funds for a recently purchased ATV and generator. [^1]

[4] Motions to a single judge of the Court of Appeal relate generally to (i) how the appeal will be conducted (such as motions for extensions of time, or the enforcement of, or relief from compliance with, this court’s procedural rules) or (ii) how the rights of the parties are to be preserved pending the appeal (such as motions for the imposition or lifting of stays or security for costs). This motion does not fit within these parameters.

[5] The appellant argues that her motion is justified on two bases. First, she says that she is entitled to some of the documents she seeks by the terms of the separation agreement or by the Child Support Guidelines, O. Reg. 391/97, and that she can seek enforcement of those obligations in this court regardless of whether the documents pertain to the appeal. I disagree. Normally, enforcement of a contractual or legislative obligation must initially be sought in a court of original jurisdiction, such as the Superior Court of Justice. The Court of Appeal is a court of review, not of first view.

[6] Second, the appellant argues that some of the documents, if produced, might bear on the arguments on the appeal as they might contradict the basis on which the trial judge made findings.

[7] This argument does not justify the order sought because it is inconsistent with the appellate process. It is of course open to the appellant to challenge, on the appeal itself, the trial judge’s conclusions about the respondent’s disclosure. But apart from a panel’s discretion to receive fresh evidence in limited circumstances, the record for the appeal consists of what was before the trial judge. The appellant has not brought a fresh evidence motion (which must be heard by a panel) nor described how the test applicable on a motion for fresh evidence established in Palmer v. The Queen, [1980] 1 S.C.R. 759, would be met. This test applies, for example, to restrict the admission of new evidence on appeal that could have been introduced at trial through the exercise of due diligence. The test ensures that “the admission of additional evidence on appeal will be rare, such that the matters in issue between the parties should ‘narrow rather than expand as [a] case proceeds up the appellate ladder’”: Barendregt v. Grebliunas, 2022 SCC 22; 469 D.L.R. (4th) 1, at para. 31.

[8] While in some cases it may be proper to request orders for fresh evidence, the appellant has not demonstrated that it is appropriate to do so here by reference to what has to be shown to introduce fresh evidence. She simply argues that she has an entitlement to disclosure, stressing the fundamental obligation to disclose in family law cases.

[9] I accept completely the statement this court made in Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11, that: “The most basic obligation in family law is the duty to disclose financial information.” This obligation is immediate and ongoing in family law proceedings, and a failure to comply can lead, as it did in Roberts, to a defaulting party’s pleadings being struck and their right to contest the proceeding being taken away.

[10] Even so, those propositions do not make the appeal process a continuation of the trial at which those obligations were considered.

[11] For these reasons, the motion is dismissed.

[12] The respondent is entitled to costs of the motion in the sum of $1,500, inclusive of disbursements and applicable taxes.

“B. Zarnett J.A.”

[^1]: The appellant also moved for a copy of the life insurance policy contemplated by the separation agreement, but in oral submissions counsel noted that it had now been provided.