Court of Appeal for Ontario

DATE: 20240610 DOCKET: COA-24-CV-0256

Miller, Zarnett and Thorburn JJ.A.

Parties

BETWEEN:

Peter Alexander Strutzenberger Appellant

and

Freida Marlene Strutzenberger Respondent

Counsel: Peter Alexander Strutzenberger, acting in person No one appearing for the respondent, Freida Marlene Strutzenberger

Heard: June 3, 2024

On appeal from the order of Justice Bonnie Warkentin of the Superior Court of Justice, dated February 20, 2024.

Reasons for Decision

[1] Mr. Strutzenberger appeals the motion judge’s order dismissing his motion in which he sought to extinguish spousal support arrears and costs, and be reimbursed for support he has already paid to the respondent.

[2] The motion judge held that Mr. Strutzenberger adduced no new evidence on the motion and that there was no jurisdiction to allow the motion as there was no extant file.

[3] Mr. Strutzenberger claims the appeal should be allowed as the existing spousal support orders are premised on the respondent’s false claim that her restaurant business had not done well, and on an incorrect premise that Mr. Strutzenberger was a partner in the business that engaged him, which he says he was not. Mr. Strutzenberger claims he adduced fresh evidence on the motion, but the motion judge erred in failing to consider that new evidence on the motion.

[4] For the reasons that follow, we see no error in the motion judge’s decision to dismiss the motion.

[5] First, Mr. Strutzenberger has not filed any new evidence. The “evidence” he claims supports his appeal is not new; all of the evidence in support of these allegations was filed before the prior support orders were decided. The new material consists only of additional cases. Mr. Strutzenberger himself identifies the fresh evidence as evidence “of the case laws I filed in her motion”. In the absence of new evidence, there was nothing to engage the court’s narrow jurisdiction to vary an order on the basis of fraud or facts discovered after an order has been made.

[6] As noted by the motion judge, Mr. Strutzenberger has been contesting support for approximately 12 years and on this motion under appeal, he filed an affidavit in which he reviewed many prior orders and endorsements in this file (FS-20-0067) and in a prior file (FS-12-0332).

[7] Both cases were resolved by way of final orders: Justice H. Pierce rendered her final decision on a motion to change support on June 9, 2023 and an appeal from that order was dismissed by this court on November 3, 2023 (2023 ONCA 755).

[8] The motion judge therefore correctly held that the issue of spousal support, including Mr. Strutzenberger’s motion to change support, had been finally adjudicated. Mr. Strutzenberger’s motion did not engage any jurisdiction to revisit support.

[9] We see no error in the motion judge’s dismissal of the motion. The appeal is therefore dismissed.

“B.W. Miller J.A.”

“B. Zarnett J.A.”

“Thorburn J.A.”