



COURT OF APPEAL FOR ONTARIO

CITATION: Roscoe v. Roscoe, 2012 ONCA 817

DATE: 20121126

DOCKET: C55604

Simmons, Cronk and Rouleau JJ.A.

BETWEEN

Peter Karl Roscoe

Appellant

and

Kendra Roscoe

Respondent

Peter Karl Roscoe, acting in person

Jirina Bulger, for the respondent

Heard: November 13, 2012

On appeal from the order of Justice Timothy Minnema of
    the Superior Court of Justice, dated April 25, 2012.

ENDORSEMENT

[1]

The appellant appeals from a child support
    variation order awarding lump sum child support to the respondent in the amount
    of $32,053.51 as requested by the respondent and dismissing the appellant's
    request for a retroactive reduction of child support. The order also dismisses
    the appellant's requests for leave to bring further motions (he had previously
    been declared a vexatious litigant) and his various constitutional challenges.

[2]

We agree that the appellant's financial
    circumstances had changed somewhat from the date of the original support order
    in which the trial judge imputed to him rental income of $16,800 per year from
    his home. The appellants home was seized and sold by a mortgagee in October
    2010. Nonetheless, we are not persuaded that the motion judge erred in dismissing
    the appellants claim for a retroactive reduction of child support and in
    granting the respondents request to vary the periodic child support order to
    an order for lump sum child support.

[3]

The appellant has never paid child support
    voluntarily since the original order was made in 2003. Nor has he made proper
    financial disclosure. Further, he has engaged the respondent in protracted
    litigation. Apart from the seizure of his home, the appellant did not
    demonstrate any other change in his circumstances. In 2003, the trial judge
    took account of the equalization payment in imputing investment income. The fact that the appellant may not be working now does not rebut the trial
    judge's conclusion that he is capable of working.

[4]

The child is now just under 14 years of age. No
    child support has been paid since March 2011. Even assuming a somewhat reduced
    level of ongoing periodic support would have been warranted from October 2010
    forward, the lump sum support awarded is not outside the range of what was
    appropriate.

[5]

In the circumstances, a
    lump sum award was appropriate and we are not satisfied that any retroactive
    variation of child support was necessary.

[6]

The motion judge was correct in holding that the
    appellants requests for leave to bring many of the motions he sought to
    advance had previously been dealt with  as had some of the motions. That said,
    in our view, the motion judge erred in failing to consider the appellants
    motion for leave to request access. The appellant had been granted leave to
    bring a motion to seek the involvement of the Office of the Childrens Lawyer. His
    advice to the court that he had determined that the Office of the Childrens
    Lawyer would not become involved was not dispositive of his request to advance a
    claim for access.

[7]

The appellant shall be entitled to request leave
    to bring a motion for access. The appeal is otherwise dismissed.

[8]

Costs of the appeal are to the respondent on a
    partial indemnity scale fixed in the amount of $6,500 inclusive of
    disbursements and applicable taxes.

Janet
    Simmons J.A.

E.A. Cronk
    J.A.

Paul S.
    Rouleau J.A.


