



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Menezes, 2018 ONCA 287

DATE: 20180321

DOCKET: C64514

BETWEEN

Hoy A.C.J.O., Juriansz and Miller JJ.A.

Christine Johnson

Applicant (Respondent)

and

Emmanuel Menezes

Respondent (Appellant)

David Harris-Lowe, for the appellant

Elizabeth Sachs, for the respondent

Heard and released orally: March 16, 2018

On appeal from the order of Justice Michael R. Gibson of
    the Superior Court of Justice, dated October 10, 2017.

REASONS FOR DECISION

[1]

The principal issues in this family law dispute were the custody of the
    parties 15-year-old daughter and child support.

[2]

The appellant father was involved in a motor vehicle accident a month
    prior to the first case conference. He did not attend the case conference or
    file an answer or case conference brief. The case conference judge ordered the
    father noted in default and set the matter down for an uncontested trial. After
    the uncontested trial, the trial judge, on January 30, 2017, made an order
    granting the mother sole custody with the fathers access at her discretion. He
    also granted child support based on the fathers 2015 income retroactive to
    October 1, 2011.

[3]

The father brought a motion to set aside the default judgment that was
    eventually heard on October 2, 2017. That motion was dismissed and the father
    now appeals to this court.

[4]

The motion judge rejected the appellants explanation for the default
    and the delay in moving to set aside the default judgment, noting that the
    motor vehicle accident had not prevented him from attending to his claim for
    statutory accidents benefits and his civil action for damages.

[5]

The motion judge went on to conclude it was not in the interests of
    justice to set aside the final order to allow the appellant to submit an answer
    that would make no significant changes to the existing order. In our view,
    the motion judge erred in arriving at this conclusion in one respect. The
    appellant has persuaded us that he has an arguable case on one issue, namely
    the determination of retroactive child support. The record before the trial
    judge included the appellants income for the years 2013 through 2015. While
    his income in the years 2014 and 2015 was in the order of $100,000, his income
    for the year 2013 was $44,877. The trial judge used the appellants 2015 income
    in setting the quantum of child support, which he made retroactive to October,
    2011. It appears to us arguable that the trial judge failed to consider the
    evidence of the appellants 2013 income in determining retroactive child
    support. We are not persuaded that the appellant has an arguable case on any
    other issue.

[6]

We consider it in the interests of justice to set aside paragraph 3 of
    the order of the trial judge dated January 30, 2017, allow the appellant to
    file an answer on the issue of retroactive child support only, and allow the
    matter to proceed on that issue.

[7]

The mother was substantially successfully in this court and below and we
    fix costs accordingly. The mother shall be entitled to her costs of this appeal
    fixed in the amount of $6,000, and for the motion before Justice Gibson below
    in the amount of $3,000, both amounts inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

R.G. Juriansz J.A.

B.W. Miller J.A.


