The following decision of the Ontario Court of Appeal which was heard and released orally on April 3, 2012, deals with an appeal from an order made varying child support.
The appellant claims that the appeal should be heard and the order set aside for the following reasons:
- She did not receive proper notice of the variation motion, and
- As a result of the improper notice received, she did not attend on the motion, the result of which was an order varying child support.
Prior to the judges even hearing the appellant’s arguments, however, the respondent brought a preliminary motion and asked the appellate judges to adjourn the appellant’s appeal, based on the fact that she has failed to pay 2 costs orders.
The appellate judges declined his request and the appeal was heard.
The appellate judges cited rule 25(19) of the Family Law Rules, which states that a court may, on motion, change an order for various reasons, which include but are not limited to:
An order that was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
Therefore, the appellate judges affirmed that the Superior Court of Justice, which is the court that heard the motion and granted the variation, had jurisdiction to do so and consequently Rule 25(19) should be followed. They continue in their reasons and state that notwithstanding the fact that there may have been some technical defect in service, they were satisfied that the appellant had direct knowledge of the motion to vary child support and so her argument with which she alleges inadequate notice was not accepted by the court.
Therefore, the appeal was dismissed and costs were not awarded to either party.
However, the appellate judges did state in their reasons that despite same, neither party is barred from seeking a variation of the order in question (regarding child support) on the basis of fresh information.