



COURT OF APPEAL FOR ONTARIO

CITATION: Jonas v. Akwiwu, 2021 ONCA 641

DATE: 20210923

DOCKET: M52509 (C69197)

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

BETWEEN

E.
    Jonas

Applicant

(Respondent/Moving Party/Responding Party)

and

K. Akwiwu

Respondent

(Appellant/Responding Party/Moving Party)

K. Akwiwu, acting in person

Edosa Adams-Idode, for the respondent, E.
    Jonas

Heard: September 16, 2021 by video conference

On appeal from the order
    of Justice Clayton Conlan of the Superior Court of Justice, dated February 16,
    2021, with reasons reported at 2021 ONSC 284 and 2021 ONSC 1187.

REASONS
    FOR DECISION

[1]

The appellant submits that the motion judge
    erred in determining the effective date for the retroactive variation of a child
    support order. He submits that the motion judge should have selected an earlier
    date.

[2]

The motion judge found that there had been a
    material change in circumstances as a result of the appellants health
    challenges and the loss of his job and that a variation was appropriate. The
    next issue was the effective date of the variation.

[3]

The motion judge rejected the appellants
    submission that the effective date should be October 31, 2019, when his former
    lawyer sent an email to the respondent giving notice that the appellant would
    be requesting a reduction. Instead, the motion judge determined that the
    applicable date should be October 1, 2020, the first day of the first month
    following the motion to change.

[4]

The motion judge found that the lawyers email
    provided no evidence of the circumstances warranting a change and that the
    appellant was responsible for the inordinate delay in bringing the application.
    The motion judge was plainly aware of and sensitive to the appellants health
    challenges as well as the difficulties arising from the pandemic. However, he
    found as a fact that the delay was not justified and that it worked to the
    prejudice of the respondent and the children, who were depending on the
    enforcement of the accumulated arrears.

[5]

On appeal, the appellant seeks to adduce fresh
    evidence to support his argument that the respondent was adequately informed of
    his change in circumstances and of his intention to seek a variation. The
    respondent also seeks to introduce fresh evidence and seeks disclosure from third
    parties.

[6]

We would not accept the fresh evidence tendered
    by either party. The proposed fresh evidence does not meet two important
    aspects of the
Palmer
test: the evidence could have been adduced at
    trial with reasonable diligence and we are not satisfied that it would have
    altered the result:
R. v. Palmer
, [1980] 1 S.C.R. 759.

[7]

The motion judges decision involved mixed
    questions of fact and law. The factual issues had to be resolved on contentious
    evidence and an evidentiary record that was less than perfect, in large measure
    due to the failure of the appellant to make full disclosure of his income. The
    appellant has demonstrated no palpable and overriding error in the motion
    judges assessment of the evidence and his determination of the factual issues
    is entitled to deference.

[8]

On the issue of the effective date of the
    variation, the motion judge had regard to the prejudice to the respondent and
    the children caused by the appellants failure to bring his motion on a timely
    basis  this was a reasonable consideration, which the appellants submissions
    do not address.

[9]

For these reasons, the appeal is dismissed, with
    costs to the respondent fixed at $2,500 inclusive of disbursements and all
    applicable taxes.

G.R.
    Strathy C.J.O.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


