CITATION: Obahiagbon v. Nhau, 2024 ONSC 4603

OSHAWA COURT FILE NO.: DC-24-1545-00

DATE: 20240819

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Esosa Obahiagbon, Appellant/Moving Party

-and-

Johannah Nhua, Respondent

BEFORE: The Honourable Madam Justice S.E. Healey

COUNSEL: Appellant/Moving Party, Self-Represented

Robyn Switzer, Counsel, for the Respondent

HEARD: August 8, 2024

ENDORSEMENT

INTRODUCTION

Nature of the Motion

[1] The appellant moves for a stay pending appeal of the final order of Justice Leef dated April 9, 2024, made following an 11-day trial on the respondent’s claims for child and spousal support.

Order Under Appeal

[2] At trial, the respondent disputed that the parties were in a relationship of permanence, disputed that the respondent was entitled to or had need for spousal support, maintained that income should be attributed to the respondent beyond her T4 earnings, and disputed that he earned more than $35,000 per year.

[3] Justice Leef found that the parties were in a relationship of some permanence and thus were spouses pursuant to s. 29 of the Family Law Act. She found that the appellant had an imputed income of $156,841.89 and ordered child and spousal support to commence being paid by the appellant on May 1, 2024 on that basis: mid-range spousal support in the amount of $2,433; child support in the amount of $1,348; and 66% of s. 7 expenses. She ordered the appellant to obtain life insurance in the amount of $500,000 as security for his support obligations. She also fixed the retroactive support from the month following their child’s birth to April 30, 2024 in the amount of $210,835, less credit for support paid by the appellant between January 1, 2023 to April 30, 2024. That amount was ultimately determined to be $187,267.

Procedural Background

[4] By order of Justice Charney dated May 21, 2024, the process for the hearing of this motion was that the appellant would rely on his motion record and factum pursuant to r. 37.12.1(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and the respondent, wishing to make oral submissions on the motion, would obtain a one-hour motion date from the trial coordinator for this purpose.

[5] The material to be relied on for a motion is governed by r. 37.10 of the Rules of Civil Procedure. The material relied upon by the appellant for this motion, as set out in his Form 37B Confirmation dated August 1, 2024, lists material counting more than 4,000 pages, not including the exhibit books, trial records and updated exhibit books and trial records filed by each party at trial. The notice of motion seeking a stay is 66 pages, single-spaced and 242 paragraphs long. The factum, contrary to the Consolidated Civil Provincial Practice Direction limiting factums to 20 pages unless leave is granted, is 51 pages long.

[6] The appellant is aware of page limits for factums; he has a motion pending for leave to file fresh evidence on appeal and to increase the page limit of the factum. Contrary to r. 37.10 (6), the factum deviates significantly from the requirement to contain “concise argument”. Rule 37.10 (2) limits the contents of the motion record to “any other material that is necessary for the hearing of the motion”.

[7] It is obvious that the scope of the documents that the appellant seeks to have this court review for this motion goes well, well beyond what is needed for the motion. In effect, he has asked that this court review the entirety of the documentary evidence given at the trial. He has even referred to documents, Ms. Switzer advised the court, that were not entered into evidence at trial and which may be part of his motion to admit fresh evidence. Even taking into account that the appellant is self-represented, he has been involved in the court system long enough to appreciate that it would be unreasonable to expect that a judge sitting in motions court would have the time to review all of the material that he purports to rely upon.

[8] I reviewed the appellant’s notice of appeal, notice of motion for a stay (Case Center #21), his notice of motion exhibits (Case Center #22), his factum (Case Center #10) and his response to the respondent’s factum (Case Center #19), as well as the material filed by the respondent for this motion.

The Law

[9] The test for a stay pending appeal is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 1994 117 (SCC) and Collins v. Tiveron, 2024 ONCA 447:

1. Does the appeal raise a serious issue?

2. Will the appellant suffer irreparable harm if the stay is not granted?

3. Does the balance of convenience favour granting or refusing the stay?

Serious Issue

[10] The appellant’s notice of appeal, his notice of motion and his factum makes it clear that he is alleging multiple factual errors and conclusions on the part of Justice Leef, and various misapprehensions of the evidence. The test for appellate intervention in the event of an alleged error of fact or misapprehension of the evidence is a strict one, and it is well-settled law that factual findings made by a trial judge are entitled to significant deference.

[11] The multiple negative adverse credibility findings drawn against the appellant by Justice Leef suggests that he will not be able to present a strong case on appeal. Justice Leef found that he had attempted to deceive the appeal court during an immigration hearing regarding the true situation of the family, and that he had been “less than forthright” about his financial situation, as well as being deceptive about his relationship with the respondent. She found that his financial evidence was inconsistent, that he selectively disclosed information, that his evidence was often contradicted by the documentary evidence and his explanations for the inconsistencies often illogical. She also noted, as he testified at trial, that he tricked the respondent into having his child by IVF, leading her to believe that he wanted a future with her when he had no intention of doing so. In contrast, she found the respondent to be credible.

[12] The appellant also alleges an error of law, stating that the trial judge failed to appropriately apply s. 7 and s. 19(1) of the Child Support Guidelines. There is no cogent argument anywhere in the material as to what specific legal error is alleged to have occurred; ultimately it appears that what the appellant is asserting is that Justice Leef’s factual errors led to errors in applying those sections of the Guidelines.

[13] This factor does not weigh in favour of granting the stay. While the threshold to meet on this prong of the test is not high, the appellant has not presented a strong argument that there is a serious issue to be tried on appeal.

Irreparable Harm

[14] In his notice of motion and factum, the appellant raises arguments that he appears to have raised at trial, namely, that his income has never been as high as that imputed by Justice Leef.

[15] He asserts that he will not be able to afford to pay medical expenses not covered by OHIP for his mother, who he sponsored to come to Canada. There is no evidence of such past payments or any ongoing obligation in his exhibits for this motion.

[16] Based on his own view of his income, and what he argues to be the trial judge’s mistakes about the respondent’s income, the appellant asserts that the net distribution of income between households is disproportionately in the respondent’s favour.

[17] The appellant makes no argument and presents no evidence that he is faced with the threat of any imminent financial hardship arising from the order under appeal. The appellant is employed as a nurse working around the GTA, and owns and operates a corporation which contracts his nursing services to various nursing agencies. Ms. Switzer submitted that the appellant owns his own house, and that it is unencumbered.

[18] The appellant has not shown that he will suffer irreparable harm if the stay is not granted.

Balance of Convenience

[19] This factor weighs in favour of refusing the stay, as the payment of ongoing support, both child and spousal, will ultimately benefit the child who has her primary residence with the respondent.

[20] The respondent has been represented by counsel throughout the lower court litigation and this appeal. The respondent became a pilot after immigrating to Canada from Zimbabwe, and Justice Leef made various findings of fact as to how parenthood negatively impacted her ability to earn income and resulted in sacrifice of her career.

[21] At paragraph 82 of her Reasons, Justice Leef stated that the respondent has had to liquidate her savings and borrow money from her family to pay her ongoing expenses. She owns a home jointly with her mother and is often unable to pay her share of the expenses, leaving her mother to cover the costs. At paragraph 122, she stated that “Johannah has struggled financially, and she has had to incur significant debt to provide for herself and the child”.

[22] In addition to identifying what she referred to as “red flags” concerning the appellant’s income, Justice Leef also discussed that the appellant has in the past rented out his basement, yet did not explain why that source of income was no longer available to him.

[23] Costs of the trial have not yet been decided by Justice Leef and a date for the hearing could not be set before the end of September because the appellant was unable to commit to an earlier date. As explained in the respondent’s material, in the meantime he had the time to prepare his appeal material and three motions within the appeal, further driving up costs for the respondent.

[24] The findings made by Justice Leef suggest that the appellant has had the means to pay child support from the time of the child’s birth, and the large amount of arrears operates against accommodating the appellant over the child.

[25] The appellant has not met the onus of demonstrating that the balance of convenience favours granting the stay.

[26] As the appellant has not met the test for a stay pending appeal, this court orders that his motion is dismissed.

Costs

[27] The respondent seeks $5,000 in costs for this motion. Ms. Switzer advised the court that she was called to the bar in 2010 and her hourly rate is $425. On a partial indemnity scale, this is the equivalent of approximately 16.5 hours for this motion when HST is factored in. This case was not reached until the later afternoon, and accordingly at least 5 of these hours can be attributed to the appearance only. Given the volume of material that Ms. Switzer was faced with, and her need to provide comprehensive argument in response, the remaining time spent on preparation is more than reasonable. As was her request for an oral hearing, given the complicated history of this case.

[28] This court orders that the appellant shall pay costs of this motion to the respondent in the amount of $5,000 inclusive, within 30 days.

Healey, J.

Released: August 19, 2024