



COURT OF APPEAL FOR ONTARIO

CITATION: Khairzad v. Erroussa, 2021 ONCA
    667

DATE: 20210927

DOCKET: C68805

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Seyar Khairzad

Applicant (Appellant)

and

Ghizlane Erroussa

Respondent (Respondent)

James A. Brown, for the appellant

John V. Grant, for the respondent

Heard: September 16, 2021 by
    video conference

On appeal from the order of Justice Lauren
    Bale of the Superior Court of Justice, dated March 31, 2020, with reasons
    reported at 2020 ONSC 1787.

REASONS FOR DECISION

[1]

The appellant, Seyar Khairsad, appeals from a March 31, 2020 order:

(i)

dismissing his motion
    to change the consent decision-making and parenting time order made by Pazaratz
    J. on August 11, 2017; and

(ii)

increasing the appellants
    monthly child support from $179 to $359 based on an imputed annual income of
    $40,000.

[2]

The appellant also brings a motion for leave to adduce fresh evidence on
    his annual income for the years 2017, 2018, his employment status, and leasing
    arrangements.

[3]

At the conclusion of their oral submissions, we advised the parties that
    the appeal was dismissed with reasons to follow. These are those reasons.

Decision-Making Responsibility and Parenting Time

[4]

The parties separated prior to the birth of their daughter, born in
    December 2016. She has always resided with the respondent. In 2017, the
    appellant was charged with assault of the respondent and entered into a peace
    bond. The motion judge found that the respondent is a victim of domestic
    violence at the hand of the appellant.

[5]

The appellant submits that the motion judge erred by failing to award
    joint decision-making responsibility (previously referred to as custody) to the
    appellant and by refusing to increase the appellants parenting time
    (previously referred to as access) to the parties daughter.

[6]

The motion judge declined to find a material change with respect to decision-making
    responsibility. By all accounts, the parties daughter was thriving under the
    primary care and decision-making authority of the respondent. The evolution of
    the appellants increased role in his daughters life did not amount to a
    change in circumstances warranting a change in the decision-making
    responsibility order. Furthermore, even if there were a material change, a
    joint decision-making arrangement would be unworkable. The motion judge noted
    the history of abuse, the ongoing difficulties in communications, and the
    appellants animosity and distrust of the respondent, all of which precluded any
    such arrangement.

[7]

As for parenting time, before the motion judge, the respondent conceded
    that there had been a material change of circumstances since the August 11, 2017
    order due to the daughters age and stage of development. The motion judge
    adjusted the appellants parenting time to consist of alternate weekends from
    Friday at 4 p.m. to Sunday at 7 p.m., every Tuesday afternoon from 4 p.m. to 7 p.m.,
    and Tuesdays from 9 a.m. to 7 p.m. during the months of July and August on
    certain terms.

[8]

The appellant asks this court to vary the decision-making order and
    invites us to adjust the parenting times contained in the order granted, saying
    the order failed to reflect the principle of maximum contact consistent with
    the best interests of the child.

[9]

An appeal court should only intervene in a parenting order or family
    support decision where there is a material error, a serious misapprehension of
    the evidence, or an error in law:
Hickey v. Hickey
, [1999] 2 S.C.R.
    518, at para. 2;
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
    1014, at para. 12.

[10]

We
    see no such errors in the motion judges parental decision-making and parenting
    time decision. She gave detailed and thoughtful reasons. She applied the
    correct legal principles and her findings and conclusions were fully justified
    on the record before her and anchored, as they ought to have been, in the best
    interests of the child in this case. We see no basis on which to interfere.

Child Support

[11]

On
    the issue of child support, the appellant is a painting contractor and was 38
    years of age at the time of the hearing. The motion judge observed that the
    2017 order was silent on the quantum of the appellants income but that a
    monthly payment of $179 would correspond with an income of approximately $22,500
    under the Child Support Guidelines. The 2017 order required the parties to
    provide updated annual income disclosure but neither did.

[12]

On
    September 24, 2019, Chappel J. had ordered the appellant to make financial
    disclosure, but he failed to produce a sworn financial statement or any
    documentary evidence on his 2017, 2018 and 2019 income as ordered. Based on the
    failure to comply, the passage of time and the likelihood that the appellants
    income had not remained static, the motion judge found a material change in
    circumstances. She imputed an annual income of $40,000 to him based on a
    variety of factors including the number of hours he worked each week, his
    hourly rate, the availability of work, and collateral evidence of his lifestyle
    such as his rental of a Maserati motor vehicle. This imputation resulted in an
    order of monthly child support of $359.

[13]

Again,
    we see no basis to interfere. Based on the record before her, the inferences
    and conclusions drawn by the motion judge were reasonable.

Fresh
Evidence

[14]

We
    also dismiss the request for leave to admit fresh evidence.

[15]

On
    the issue of child support, the appellant failed to comply with both the 2017
    and 2019 disclosure orders. It is not now open to him to seek to admit evidence
    available to him at the time of the motion to achieve a better result on
    appeal. As stated in
R.F. v. J.W
., 2021 ONCA 528, at para. 11, the
    proper place for new evidence about changed circumstances --- if in fact the
    threshold of material change can be met --- is a motion to change before the
    court that has original jurisdiction, and not in the context of an appeal. In
    any event the appellants tax returns did not reflect his earning capacity, for
    the reasons indicated by the motion judge.

[16]

Although
    the criteria described in
Palmer v. The Queen,
[1980] 1 S.C.R. 759,
are more flexible
    where an appeal involves the best interests of a child (see for example
Goldman
    v. Kudelya
, 2017 ONCA 300, [2017] W.D.F.L. 3127, at para. 25), the fresh
    evidence on the appellants new lease arrangements could not possibly have
    affected the parenting decision reached by the motion judge. We decline to
    grant leave to admit that evidence.

[17]

For
    these reasons, the appeal is dismissed as is the motion for leave to admit
    fresh evidence.

[18]

The
    parties were invited to make written submissions on costs. Having considered
    the submissions made, the appellant is to pay the respondents costs of the
    appeal fixed in the amount of $7,000 inclusive of disbursements and applicable
    tax.

G.R. Strathy
    C.J.O.

S.E. Pepall
    J.A.

G. Pardu J.A.


