



COURT OF APPEAL FOR ONTARIO

CITATION: Arrocha v. Harrison, 2018 ONCA 513

DATE: 20180601

DOCKET: C64687

Watt, Huscroft and Trotter JJ.A

BETWEEN

Liz Michelle Arrocha

Respondent

and

Paul Harrison

Appellant

Paul Harrison, in person

Irving Frisch, for Liz Arrocha

Carol Smith and Ansuya Pachai, for the City of Toronto

Heard and released orally: May 30, 2018

On appeal from the
    order of Justice Beth A. Allen of the Superior Court of Justice, dated November
    28, 2017.

REASONS FOR DECISION




[1]

The appellant appeals the dismissal of his motion to change the amounts
    he was previously ordered to pay as child and spousal support. On a prior
    occasion a panel of this court had dismissed his appeal from the original
    support orders.

[2]

Several months after the original support orders were made, the payee
    assigned her interest to the City of Toronto. The assignment itself contained
    no fixed-end date.

[3]

It is undisputed that the appellant has made no support payments. In
    addition, he has not paid any costs orders made at trial or on appeal and, for
    that matter, by the judge whose decision he asks us today to reverse.

The motion judge found not only that that the appellant
    had failed to pay any support and several outstanding costs orders, but also
    that he had made no good faith attempt to do so. After noting the seriousness
    of the appellants unyielding failure to comply with these outstanding orders,
    the motion judge invoked Rule 1(8)(b) of the
Family Law Rules
to
    dismiss the motion to change.

Although the motion judge grounded her decision on
    Rule 1(8) of the
Family Law Rules
, she went on to consider the merits
    of the motion. She concluded that the motion was, at best, a poorly disguised
    attempt to relitigate issues already decided at a prior trial and upheld on
    appeal. She also rejected a claim made by the appellant for damages for fraud
    on the basis that it was statute-barred.

[4]

In this court, the appellant contends that the motion judge erred:

i.

in failing to find that the relief sought by the City of Toronto - dismissal
    under Rule 1(8) - was unavailable since the citys assignment had expired thus
    it had no status to appear or claim relief on the motion;

ii.

in failing to properly consider the appellants good faith offer to
    contribute reduced amounts to unpaid support orders; and

iii.

in failing to give effect to the claim of fraud.

[5]

In our view, this appeal fails.

[6]

First, in the absence of any support payments, the assignee of those
    payments - the City of Toronto - maintains its party status to the extent of
    its financial interests.

Second, Rule 1(8)(b) of the
Family Law Rules
entitled the motion judge to dismiss the claim to vary because of the
    appellants failure to abide by the support and costs orders made in prior
    proceedings in this case. The failures to pay were undisputed as was the
    absence of any evidence of any real good faith effort to make such payments.
    Those circumstances, in combination, constituted a sound basis for the motion
    judge to exercise her discretion as she did.

[7]

Third, the allegation of fraud is at once irrelevant to the
    determination of the motion to change and statute-barred as a free-standing
    cause of action.

[8]

The appeal is dismissed. Each respondent is entitled to costs which we
    fix at $2500, inclusive of disbursements and all applicable taxes.

David
    Watt J.A.
Grant Huscroft J.A.
G.T. Trotter J.A.


