Court of Appeal for Ontario

Date: 2024-07-29 Docket: COA-23-CV-0082

Before: Miller, Harvison Young and Gomery JJ.A.

Between:

Peter Akinwale Akinsola Applicant (Appellant)

and

Abimbola Titlayo Akinsola Respondent (Respondent)

Counsel: Ikenna Aniekwe, for the appellant Monika Curyk, for the respondent

Heard: July 18, 2024

On appeal from the order of Justice Renu J. Mandhane of the Superior Court of Justice, dated December 29, 2022, with reasons reported at 2022 ONSC 6906.

Reasons for Decision

[1] The appellant appeals the trial judge’s order requiring him, among other things, to pay retroactive and ongoing child and spousal support based on imputed income. He also appeals the trial judge’s costs order. For the reasons that follow, the appeal is dismissed.

[2] The parties met in Nigeria in 2007, married in 2012, immigrated to Canada in 2015, and separated in 2017. They have one child. The appellant is a mechanic who owns auto mechanic companies in Nigeria and Canada. The respondent currently works as a personal support worker.

[3] The respondent claimed child support, spousal support, and equalization of net family property. The trial judge drew a strong adverse inference against the appellant based on his failure to make meaningful financial disclosure, a failure she described as “monumental and transnational in scope”. She ordered the respondent to pay past and ongoing child support based on imputed annual income of $130,000 (except for 2020, when the imputed income was $110,000). She held that the respondent was entitled to indefinite spousal support on both a compensatory and needs basis, with the amount based on the same imputed income at the high end of the Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), payable from the date of separation. The trial judge also ordered the appellant to pay $21,147.50 as an equalization payment.

[4] The appellant focussed on three main points in oral argument.

[5] First, he contends that the trial was procedurally unfair and that this in turn led to an unfair result. The application was first heard by Trimble J. in March 2021. He ruled that the second volume of the appellant’s proposed productions (“Volume 2”) was inadmissible, because it had not been filed within the required deadline. The hearing before Trimble J. ended in a mistrial. When a new trial was commenced before the trial judge in November 2022, she directed that the appellant could make a motion to Trimble J. to vary his earlier order with respect to the Volume 2 documents. Trimble J. granted the motion the next day and held that the documents were admissible subject to the trial judge ruling otherwise.

[6] Despite this, the appellant took no further steps to introduce the Volume 2 documents into evidence. His explanation for this, in his submissions to this court, is that he left his copy of Volume 2 in Saskatoon, where he currently resides, when he came to Ontario to attend the November 2022 hearing. He did so because he assumed that Trimble J.’s first order would remain in effect. As a result, the appellant contends that he was practically prevented from presenting his case.

[7] We do not accept the appellant’s submissions on this issue. There is no evidence before us that the appellant did not have a copy of Volume 2 with him at trial. The transcript of the trial is replete with references to the table of contents and documents in Volume 2. But even assuming, for argument’s sake, that the appellant did not have a copy of Volume 2 when Trimble J. made his November 2022 order, the appellant could have then sought an adjournment. He did not do so. His lack of access to any documents is accordingly the result of his own strategic decision at trial.

[8] Second, the appellant argues that the trial judge erred by putting the onus on him to disprove the respondent’s claims about his income level. We do not agree that she did so. The trial judge found that the appellant earned $130,000 in income in 2017 based on his own admission that he had drawn $105,000 in business income that year, which the trial judge grossed up. In the absence of any reliable evidence that the appellant’s income level changed after 2017, she imputed the same annual earnings to him in all subsequent years except 2020; she accepted that the appellant would have earned less as a result of the COVID-19 pandemic that year and reduced his imputed income to $110,000.

[9] Third, the appellant contends that the trial judge failed to explain why she rejected the appellant’s evidence regarding his income. We again disagree. The trial judge explained that the appellant’s evidence about his income was implausible. She noted, for example, that he declared income of only $40,000 in 2017, even though he drew $105,000 in income from his business that year and could not adequately explain what happened to the remaining $65,000. Although the appellant speculated in his examination in chief that some of the funds withdrawn were used for business expenses, he did not produce any receipts or corroborating documents. In cross-examination, he admitted that most of the money in his business account was used to support his family. The trial judge also found that the appellant’s stated income from 2017 onwards was incompatible with expenses he incurred for travel, housing, and other expenses. The trial judge characterized his explanation for inconsistencies in his evidence as “nonsensical and entirely self-serving”.

[10] The appellant has not identified any legal error, or palpable and overriding error of fact or mixed fact and law, in the trial judge’s reasons on these issues or any other issue. He has likewise not established the trial judge made any reversible error in her costs award in favour of the respondent.

[11] We accordingly dismiss the appeal, with costs of $5,000 to the respondent, as agreed by the parties.

“B.W. Miller J.A.”

“A. Harvison Young J.A.”

“S. Gomery J.A.”