If there’s one thing we’ve learned in over 25 years of providing family law advice, it’s that things might not always go as planned during litigation. But our experience has also taught us that despite one matter not going your way, it’s important to follow the direction of the courts or else face a risk of future litigation not working out in your favour, either. This was a lesson learned by an appellant in a recent decision from the Court of Appeal for Ontario.
A motion to reduce child and spousal support
The matter came about originally following the dissolution of a marriage between the father and the mother. The father came to Canada from Italy when he was 17-years-old. He was 54-years-old at the time of the trial. The mother moved to Canada from Ecuador after she married the father. She was 27-years-old at the time and is now 46. The parties were married for about 11 years and had two children before commencing divorce proceedings in 2013.
The original divorce hearing was described as “very contentious.” The trial resulted in child support and spousal support orders in the amount of $1,652 and $1,121 respectively.
The father appealed that original amount and in October 2016 and was granted an interim order obligating him to pay a reduced sum of $1,412 for both child and spousal support combined.
Appeal is dismissed due to failure to pay
On July 7, 2017 the father’s appeal was dismissed on the grounds that he had failed to pay the interim child and spousal support as ordered in 2016. In the decision, the court stated,
“This court has consistently refused to hear from a party or entertain an appeal where the record shows continuing disobedience with court orders.
Here, it was the husband’s counsel who – in order to avoid an order for partial payment of the equalization payment – proposed the amount of interim support, which the husband has since not paid.
The husband’s actions in failing to pay the interim child and spousal support and in not pursuing or perfecting the appeal on a timely basis disentitle him from continuing with this appeal. [Citations omitted.]”
The father did not rest for long, though. Four days after his appeal was denied, the father sought an order to reduce support payments based on a material change of circumstances, stating a sharp decline in his health and his inability to continue working in his field as an insurance broker has led to a reduction in how much money he earns.
Lack of new evidence
A motion judge declined to provide the relief sought by the father, stating that the opportunity to present evidence about his health and employment had long-since passed. The court found that any evidence not available during earlier proceedings was only unavailable because the father failed to present it. The motion judge also stated that any unemployment experienced by the father was a result of decisions he made to intentionally avoid or reduce the payments of spousal or child support.
The court agreed with the motion judge and dismissed the appeal, with costs of $12,500 awarded to the mother.