Court File and Parties

CITATION: Kankam v. Duodu, 2022 ONSC 5345

DIVISIONAL COURT FILE NO.: 21-1255

DATE: 20220921

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KWASI KANKAM, Appellant

- and-

OLIVIA DUODU, Respondent

BEFORE: Backhouse, Stewart Matheson JJ.

COUNSEL: Kwasi Kankam, the Appellant, Self-represented

Jerrod K. Grossman, for the Respondent

HEARD at Oshawa: By videoconference on September 20, 2022

ENDORSEMENT

Backhouse J.

[1] The appellant, Kwasi Kankam, appeals the September 17, 2021 order of Justice Finlayson (the “case conference judge”) dismissing his application and ordering him to pay $3000 in costs. The appellant submits that the case conference judge exceeded his jurisdiction as a case conference judge and failed to observe procedural fairness and natural justice. For the following reasons this appeal is dismissed.

Background

[2] In 2019 the appellant father brought proceedings in the Ontario Court of Justice at 47 Sheppard Avenue, Toronto. The appellant mother and child reside in Toronto. The father resides in Oshawa. On December 5, 2019, Justice Paulseth of the Ontario Court of Justice granted the respondent mother sole custody and primary residence of the parties’ child, Isiah Adom Kankam, born August 14, 2017, the father was granted access and was required to pay child support and arrears of support.

[3] On October 30, 2020, the father commenced an application in the Superior Court of Justice (Oshawa) seeking a change to five paragraphs of Justice Paulseth’s order:

Paragraph 6 (neither party to move their personal residence more than 50 km from the current resident without consent or court order);

Paragraph 12 (base child support);

Paragraph 13 (declaration of father’s income for purposes of calculating his proportion of special and extraordinary expenses);

Paragraph 15 (amount of father’s special and extraordinary contribution to daycare);

Paragraph 19 (support arrears).

[4] The mother’s counsel advised the father by email on November 12, 2020 that in his opinion the father’s application was in the wrong court and should be withdrawn. The mother’s case conference brief stated that the father’s application lacked disclosure to support the claims and that the father was repeating the same things he did before the Ontario Court of Justice where he made frivolous claims and failed to provide evidence to support them. She proposed that the father’s claims be dismissed with costs.

[5] It is noteworthy that when the father commenced his Superior Court application, it was less than one year from the date of Justice Paulseth’s order, which was made on consent.

[6] In the circumstances there was nothing inappropriate in the case conference judge raising the issue of the appropriate jurisdiction for this matter to be heard. The father had the assistance at the case conference of a lawyer who was his agent. The case conference judge recognized that the father’s application was technically authorized under the Rules but that, in the circumstances of this case, it was more appropriate for the matter to proceed in the Ontario Court of Justice. We agree. There is no merit to the father’s claim that the case conference judge exceeded his jurisdiction or failed to observe procedural fairness or natural justice due to a failure to give notice.

[7] The case conference judge found that all of the father’s claims were within the jurisdiction of the Ontario Court of Justice and that it had already been involved. In addition he found that the Ontario Court of Justice was in the best position to determine whether the father was raising the same arguments about child support that had been raised before Justice Paulseth. As the former case management judge, she would know whether the father had raised spousal support or could have in the prior proceedings, the nature of the relationship and whether it is spousal within the meaning of s.29 of the Family Law Act.

[8] The case conference judge was persuaded that there was no good reason for the father to proceed in the Superior Court. His decision was without prejudice to the father bringing his application in the Ontario Court of Justice. It was within the case conference judge’s discretion at a case conference to consider the factors he did, to make the determination he did and to order costs.

Conclusion

[9] Accordingly, the appeal is dismissed with costs to the respondent mother fixed in the amount of $1000.00.

Backhouse J.

I agree _______________________________

Stewart J.

I agree _______________________________

Matheson J.

Released: September 21, 2022