Court of Appeal for Ontario
Date: 20241107 Docket: COA-24-CV-0395
Judges: Brown, Coroza and Gomery JJ.A.
Parties
Between: The Director, Family Responsibility Office, for the benefit of Tori Melburn-Kumar, Applicant (Respondent)
And: Brian Kumar, Respondent (Appellant)
Counsel: Brian Kumar, acting in person Heather Puchala and Azra Champsi, for the respondent
Heard: November 1, 2024
On appeal from the order of Justice Charles C. Chang of the Superior Court of Justice, dated February 22, 2024.
Reasons for Decision
[1] This is the second attempt by the appellant, Brian Kumar, to appeal and set aside the order of Cleghorn J. of the Ontario Court of Justice dated August 8, 2023 (and amended May 2, 2024) (the “Final Default Order”). That order was made pursuant to s. 41 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. The order, as amended, required Mr. Kumar to pay lump sum arrears of $423,319.10 within 90 days.
[2] Mr. Kumar appealed the Final Default Order to a judge of the Superior Court of Justice. By order dated February 22, 2024 (the “First Appeal Order”) Chang J. allowed the appeal in part, on consent, to replace para. 4 of the Final Default Order with an order that Mr. Kumar pay ongoing child and spousal support payments of $1,653.00 per month commencing September 1, 2023. Chang J. otherwise dismissed the appeal.
[3] Mr. Kumar now appeals the First Appeal Order pursuant to s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[4] In considering this rare second appeal as of right, the jurisprudence reminds this court of the “accentuated need to identify palpable and overriding error in factual matters before interfering at this second level of review”: Ares Law Professional Corporation v. Rock, 2017 ONCA 569, at para. 14.
[5] Mr. Kumar’s main ground of appeal is that the Final Default Order and First Appeal Order both failed to properly take into account the impact of a March 2019 Mareva injunction order made against him on his ability to pay support. In his various submissions, Mr. Kumar characterized the Mareva injunction as a “conflicting order”.
[6] We see no merit in this submission. Cleghorn J., at para. 4 of her endorsement, expressly considered the Mareva injunction. So, too, did Chang J. This is made clear by paras. 15 to 18 of Chang J.’s endorsement where he dealt, in detail, with the impact of the Mareva injunction on Mr. Kumar’s ability to pay the accumulated support arrears:
[15] I do not accept Mr. Kumar’s argument that the hearing judge erred in making the final default order in the face of the mareva order. It is clear that she considered the mareva order and its impact on, among other things, Mr. Kumar’s ability to pay support in accordance with the Conlan J. order and properly found that Mr. Kumar had failed to rebut the applicable statutory presumption under the Family Responsibility and Support Arrears Enforcement Act.
[16] Of note are the following: a. the mareva order was made March 15, 2019; b. Mr. Kumar consented to the Conlan J. order with full knowledge of the mareva order and its effect on his ability to comply with it; c. Mr. Kumar consented to a temporary support payment order at the February 14, 2023 default hearing with full knowledge of the mareva order and its effect on his ability to comply with that temporary payment order; d. at the April 25, 2023 default hearing, Mr. Kumar advised the hearing judge that he had hearings for both a motion to vary the mareva order and an applicable appeal scheduled for June 19, 2023 and July 6, 2023, respectively; and e. Mr. Kumar neither filed any materials for or attended at the August 8, 2023 default hearing.
[17] Based on the above, it is clear to me that: 1) Mr. Kumar did not consider the mareva order to be a major impediment to his ability to pay the ordered support; 2) he conveyed this to the hearing judge; and 3) he adduced no evidence to contradict either of the above.
[18] Based on what was before the hearing judge, she made no reversible error.
[7] In the absence of any demonstrated error below, we dismiss the appeal.
[8] Mr. Kumar submits that even if his appeal is unsuccessful, we should not order any costs of the appeal. We disagree. This was a second appeal of the Final Default Order. The appeal lacked any merit. Consequently, an award of costs on a partial indemnity scale is appropriate. The respondent, the Director, Family Responsibility Office, seeks partial indemnity costs of just over $17,000. In our view, the respondent is entitled to its costs of this appeal fixed in the amount of $15,000, inclusive of disbursements and applicable taxes.