



COURT OF APPEAL FOR ONTARIO

CITATION:

Fair v. Fair, 2012
    ONCA 900

DATE: 20121220

DOCKET: C55424

LaForme and Watt JJ.A. and Lederman J. (
ad
    hoc
)

BETWEEN

William Garth Fair

Appellant

and

Betty Rutherford Fair

Respondent

Gary Joseph and Kenneth Younie, for the appellant

Susan Metzler, for the respondent

Heard and released orally: December 13, 2012

On appeal from the judgment of Justice John Murray of the
    Superior Court of Justice, dated April 3, 2012.

ENDORSEMENT

[1]

In December 2009, Mr. Fair brought an emergency motion to change his May
    2005 court ordered child and spousal support based on a change in
    circumstances.  At the same time, Ms. Rutherford moved for child support and s.
    7 expenses.  An interim stay of the support orders was granted and a trial was
    ordered.

[2]

At trial in March 2012, in which both parties were self-represented, Mr.
    Fairs request for the change of the support arrangement was largely denied and
    he was ordered to pay significant arrears to Ms. Rutherford.  He appeals that
    order on the basis that the trial judge erred in three ways: (1) by denying him
    an adjournment to retain counsel; (2) by imputing income to him without a
    sufficient evidentiary basis; and (3) by ordering that horse-related expenses
    are s. 7 expenses and that they should be borne solely by him.

(1)

Denying the
    Adjournment

[3]

A trial judge has wide latitude in deciding whether to grant or refuse
    the adjournment of a scheduled trial.  The decision is discretionary and the
    scope for appellate intervention is limited.  The trial judges decision to
    proceed and not adjourn the trial in this case was a proper exercise of his
    discretion.

[4]

Mr. Fair provided no supporting evidence about his alleged search or
    steps to retain a lawyer.  It was Mr. Fair who requested a hearing on the
    variation of the support arrangements in the first instance.  He must have
    known that he would need to establish through evidence that there were actually
    grounds for that variation.  He had ample opportunity to retain a lawyer and to
    prepare himself.

[5]

The trial judge considered all the circumstances including two
    peremptory orders against Mr. Fair, the reason Mr. Fair gave for not being
    prepared and the history of the proceedings.  The trial judge properly
    exercised his discretion in refusing an adjournment and this ground of appeal
    fails.

(2)

Imputing Income

[6]

From his past experiences in court, Mr. Fair had familiarity with and
    knowledge about a courts authority to impute income.  Indeed, in 2005, Mr.
    Fair consented to an order imputing his income at $200,000.  Further, in a 2009
    document between the parties, which they called a memorandum of understanding,
    Mr. Fair agreed to an imputed income of $129,000.

[7]

At trial, he failed to provide the necessary income information despite
    having been ordered to do so.  He had no credible evidence as to his financial
    circumstances when the original order was made or what the material change in
    circumstances was.  The trial judge had a sufficient basis for imputing the
    income he did.  This ground of appeal also fails.

(3)

Section 7
    Expenses

[8]

Finally, on a full and fair reading of the trial judges reasons and the
    order, it is abundantly clear that he did not conclude that the horse related
    expenses were not s. 7 expenses and nevertheless ordered Mr. Fair to pay them
    as counsel asserts.  Rather, the trial judge accepted them as s. 7 expenses and
    then ordered Mr. Fair to pay 100 per cent of them.  There is no reason to interfere
    with this decision.  This ground of appeal also fails.

[9]

For these reasons, the appeal is dismissed.

(4)

Costs

[10]

The
    respondent is entitled to her costs in the amount of $8,500 inclusive of HST
    and disbursements.  The full amount of this costs award is
    to be attributed as support.

H.S. LaForme
    J.A.

David Watt J.A.

S. Lederman J. (
ad hoc
)


