



COURT OF APPEAL FOR ONTARIO

CITATION: Pey v. Pey, 2018 ONCA 284

DATE: 20180322

DOCKET: C64585

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

BETWEEN

Ali Javaheri Pey

Applicant (Appellant)

and

Kristina Pey

Respondent (Respondent on Appeal)

and

Director, Family
    Responsibility Office

Respondent (Respondent on Appeal)

Ali Pey, appearing as self-represented

Carol Craig, for the respondent, Kristina Pey

Deann Nixon, for the respondent, Director, Family
    Responsibility Office

Heard:  March 16, 2018

On appeal from the order of Justice Heather J. Williams
    of the Superior Court of Justice, dated October 10, 2017.

REASONS FOR DECISION

[1]

After a four-day trial in January 2016, the trial judge imputed annual
    income of $110,000 to the appellant father for the purpose of calculating
    support and ordered the father to pay ongoing spousal support and child support
    for his two daughters.  He also ordered the father to pay an equalization
    payment to the mother. The father did not appeal the trial judges order.

[2]

Instead, the father brought a motion to change the trial judges order
    and the order of Justice Doyle addressing access, dated September 25, 2015, as
    varied by the trial judge on a pre-trial motion heard at the beginning of
    trial. In response, the respondent mother brought a motion under rule 1(8)(c)
    of the
Family Law Rules
to strike the fathers motion to change on the
    basis that the father had failed to obey court orders. The respondent, Director
    of the Family Responsibility Office (the FRO), brought a motion for a default
    hearing, to enforce the fathers spousal and child support obligations under
    the trial judges order.

[3]

The motion judge allowed the mothers motion and struck the fathers
    motion to change. She prohibited the father from bringing a further motion to
    change, without leave of the court, before all amounts owing under all court
    orders in the family law and the enforcement proceedings have been paid in
    full. The motion judge also granted the FROs motion and ordered the father to
    pay lump sum amounts within specified time periods, in default of which the FRO
    is entitled to bring a motion for committal, on notice to the father, for the
    imprisonment of the father for up to 180 days.

[4]

On appeal, the father asks that the motion judges orders striking his
    motion to change and granting the FRO its requested relief be set aside.

[5]

We are not persuaded that there is any basis for this court to interfere
    with the orders of the motion judge.

[6]

The motion judge based her decision to strike the fathers motion on his
    non-compliance with several court orders. As of the hearing date, the father
    owed more than $60,000 in child and spousal support, an equalization payment of
    more than $50,000, and significant court-ordered costs.  The motion judge also
    found that the father had the means to make the payments that had been ordered
    and that these court-ordered payments have simply not been a priority for
    him. She concluded that it would not be appropriate to provide the father
    with an opportunity to request relief from this Court when hes chosen to
    ignore the orders of this Court which gave relief to the mother.

[7]

The motion judge identified and applied the proper principles in
    deciding a motion to strike under rule 1(8) of the
Family Law Rules
.
    She committed no palpable and overriding factual error in the application of
    those principles. There is no basis to interfere with her exercise of
    discretion.

[8]

In seeking relief, the FRO relied on the presumptions in s. 41(9) of the
Family Responsibility and Support Arrears Enforcement Act
, 1996, S.O.
    1996, c. 31 that the payor has the ability to pay the ordered arrears and to
    make the ordered subsequent payments. The FRO argued that not only had the
    father failed to rebut the presumption, but the evidence is clear that the
    father has the ability to pay the arrears.

[9]

The motion judge agreed. In granting the order sought by the FRO, the
    motion judge wrote that the father has the ability to pay the child and
    spousal support he owes but to date, he [has] chosen not to do so.  That
    finding was amply supported by the record.

[10]

Accordingly,
    the appeal is dismissed. The mother shall be entitled to costs of the appeal in
    the amount of $ 9,545, inclusive of HST and disbursements.  The FRO shall be
    entitled to costs of the appeal in the amount of $1,645, also inclusive of HST
    and disbursements.

Alexandra Hoy
    A.C.J.O.

R.G. Juriansz J.A.

Bradley Miller J.A.


