Zinyama-Mubili v. Mubili, 2009 CanLII 55313 (ON SCDC)

DIV. COURT FILE NO.: DC-09-0040-00

(Family Court File Number: 5514-08)

DATE: 20091007

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

AGNES ZINYAMA-MUBILI

Self-Represented

Respondent in appeal (Applicant)

• and -

VIKTOR MUBILI

Self-Represented

Appellant (Respondent)

HEARD: September 25, 2009, at Milton, Ontario

Price J.

Reasons For Order

Nature of Motions

1These motions concern one of five proceedings before this Court and the Superior Court, arising from the separation of Viktor Mubili and his wife Agnes Zinyama-Mubili. The parties are both self-represented. The multiplicity of the proceedings reflects the difficulty they have had in containing their conflict and the inordinate amount of time and energy that the conflict has drawn away from their three year old son, Isa.

2The Court has intervened, in one action by granting summary judgment dismissing Mr. Mubili’s claim, in two others, by staying the actions until Mr. Mubili has paid costs and security for costs and, in a fourth, by dismissing Mr. Mubili’s motion to set aside a consent order dealing with custody and access and by requiring Mr. Mubili to obtain leave of the court before taking any steps other than his appeal from the order dismissing the consent order.

3Ms. Zinyama-Mubili now seeks an order dismissing her husband’s appeal to the Divisional Court from Justice Miller’s order of February 25, 2009, dismissing her husband’s motion to set aside a final order of Justice Mossip, made October 31, 2008. Justice Mossip’s order, made on the consent of the parties, granted Ms. Mubili custody of the parties’ son, Isa Chiluba Mubili (born January 1, 2006) and granted access to Mr. Mubili.

4Ms. Mubili submits that her husband’s appeal from Justice Miller’s order was not properly made to the Divisional Court. She submits that the appeal was also made beyond the period permitted by the Rule and was an indirect attack on several interim orders made in the proceeding.

5Mr. Mubili seeks an order striking out his wife’s motion on the ground that it is procedurally unfair to him. He asks, in the event that the appeal was not properly made to the Divisional Court, that this Court transfer it to the Court of Appeal pursuant to Sections 19(3), 6(3) and 110(1) of the Courts of Justice Act.

6In the event that Mr. Mubili’s appeal is allowed to proceed, both parties seek orders in connection with the documents filed in the appeal and remedies in relation to costs.

Issues

7The parties raise the following issues in these motions:

1. Has Mr. Mubili appealed to the proper Court?

2. Has Mr. Mubili appealed within the prescribed time?

3. Is Mr. Mubili’s appeal an indirect attack on interim orders?

4. Is Ms. Zinyama-Mubili’s motion procedurally unfair?

Background Facts

8Viktor Mubili and Agnes Zinyama-Mubili are from Zambia in Southern Africa. Mr. Mubili immigrated to Canada in August 2000. He later returned to Zambia and on November 3, 2000, married Ms. Zinyama-Mubili. He then sponsored his wife as an immigrant to Canada. She arrived in Canada in July 2004 and they began living together.

9Mr. Mubili presents himself as a person who rescued his wife from poverty and illness and presents his wife as a person who betrayed him, rewarding his kindness with infidelity and malice. He states that prior to their marriage, he paid for her nursing education in Zambia as her parents could not afford to educate her. He states that she had TB which could not be cured in Zambia and which initially caused Canada to deny her entry to this country. He states that he secured her entry by writing to the Prime Minister’s Office and that after she arrived in Canada, she was operated on and cured of her TB. He states that he then taught his wife to drive a car and bought her a new car when she obtained her driver’s licence. He claims also to have facilitated her nursing licensure in Canada.

10Mr. Mubili alleges that all the time while he was working to sponsor his wife’s immigration to Canada, she was having an affair with a man in Zambia. He states that he discovered the affair in April 2005, but decided to give their marriage a second chance for the sake of their as yet unborn son. That son, Isa Chiluba Mubili, was born January 1, 2006. Mr. Mubili alleges that eventually, in 2008, his wife “ran away from home” to be with another man, just before Mr. Mubili relocated, for employment purposes, from Ontario to Saskatchewan with his ailing mother on June 20, 2008.

11Ms. Zinyama-Mubili gives a different account of the events. She states that she and her husband separated on June 16, 2008, after seven years of marriage. She attributes their separation to irreconcilable differences, verbal abuse, humiliation and alienation. She denies Mr. Mubili’s allegation of infidelity and accuses him of having been unfaithful, stating that he has brought a girlfriend from Zambia to live with him in Saskatoon. She denies “running away from home” and states that Mr. Mubili knew of their imminent separation a month before it occurred. She states: “The respondent is a manipulative person and has become a habitual liar, and he will do anything to oppress me using the court system by constantly suing me so that I know no peace.”

12Mr. Mubili, who is a professional engineer, was employed by Cameco until a workforce adjustment led to his re-locating to Saskatchewan. He now works as a mining engineer two hours north of Saskatoon. Ms. Zinyama-Mubili is a registered nurse employed in Burlington, Ontario.

13A dispute arose between the parties over Isa’s travel to Zambia in March 2008. According to Mr. Mubili, his wife convinced him to have Isa travel to Zambia with her mother Mary Zinyama and to live there for six months to avoid his parents’ unsettling move to Saskatoon. According to Mr. Mubili, the parties agreed that his nephew would return Isa to Canada at the end of August 2008 and that Isa would then live in Saskatoon with his father. On this basis, Mr. Mubili states that he signed a letter on March 10, 2008, authorizing Isa to travel to Zambia under the care of his grandmother. Isa and his grandmother left for Zambia the following day.

14Mr. Mubili states that his nephew went to the home of Isa’s maternal grandparents in mid-August 2008, to arrange for Isa’s return to Canada. He states that the grandfather told Mr. Mubili’s nephew that Isa would only be released on payment of “a ransom”. Mr. Mubili states that upon hearing this, he traveled to Zambia himself, arriving there on September 4th. When he went to the grandfather’s home two days later, he found that the grandfather had “hidden Isa”. He states that he refused to pay the money the grandfather was demanding and instead notified the Canadian High Commission in Zambia and the local Zambia Police, who helped secure the return of his son to him. On September 8, 2008, Mr. Mubili signed an acknowledgement that he had received Isa that day from his maternal grandfather at the police station in Kamlichahga, Zambia.

15Again, Ms. Zinyama-Mubili’s account of the incident differs significantly from her husband’s. According to her, Mr. Mubili’s mother persuaded him to allow Isa to travel to Zambia with his grandmother. There were no conditions attached to Isa’s travel and no prior arrangement made as to who was going to return Isa to Canada. She points out that Mr. Mubili’s letter of authorization does not stipulate any such conditions. She points to a statement from the nephew that Mr. Mubili has tendered in the proceeding, which states that Mr. Mubili had asked him in January 2008 to bring Isa back from Zambia. Yet, notes that Isa and his grandmother did not leave for Zambia until March 11, 2008. She also points out that Mr. Mubili claims that his nephew attended at her father’s home in June 2008 for the purpose of returning Isa to Canada yet did not himself, even as late as August 8, 2008, have a visa to travel from Zambia to Canada.

16Ms. Zinyama-Mubili states that her husband was not suddenly prompted to travel to Zambia in September 2008, by any holding of Isa hostage. Rather, she says that as early as June, he had planned a vacation to Zambia in late August or early September. She tenders an e-mail that Mr. Mubili wrote to her father on June 16, 2008, in which he stated that he wanted to meet with him in Zambia in early September.

17Ms. Zinyama-Mubili’s father denies having made any demand for ransom or even having refused Mr. Mubili access to his son. He states that Isa was simply out at a neighbourhood birthday party when Mr. Mubili attended at his home. He says that the discussion of money only arose when Mr. Mubili demanded that Mr. Zinyama sign documents, apparently for the purpose of facilitating an annulment of the parties’ marriage and thereby avoiding making a payment that a husband traditionally pays to the bride’s family following their wedding, and Mr. Zinyama refused.

18Wherever the truth may lie among these accounts, it is clear that Mr. Mubili made a complaint to the authorities in Zambia to secure his son’s return to him at a police station there. Ms. Zinyama-Mubili, upon hearing of the incident, made a similar allegation of abduction against her husband, which led Justice Belleghem to issue an ex parte order authorizing the police to apprehend Isa from his father when they arrived back at Pearson Airport on September 19, 2008.

19Ms. Zinyama-Mubili states that her husband is now “trying to punish me both financially and emotionally for leaving him…” Certainly, the parties have not managed their separation well and this has led to a multiplicity of proceedings that have become forums for invective and, one suspects, opportunities for retaliation, between them.

20Because the parties’ proceedings and the orders made in them have a bearing of the present motion, I will briefly set out their histories.

Court File No. 5514/08 – Ms. Zinyama-Mubili’s Application for Custody, Access and Support

21Ms. Zinyama-Mubili began this proceeding by Notice of Application issued September 15, 2008, in Milton, claiming custody and child support, under the Family Law Act or Children’s Law Reform Act, and a restraining order against her husband. She also made an ex parte motion for temporary custody of Isa and for child support and for an order directing the police to apprehend Isa from her husband.

22On September 17, 2008, Justice Belleghem heard the wife’s motion on an emergency ex-parte basis. He granted her custody pending service of the motion on her husband and directed the police to apprehend Isa. He ordered that all of the material in support of the motion be served personally on Mr. Mubili on his return to Canada. He adjourned the motion to an emergency Case Conference on September 26, 2008 and adjourned the wife’s motion for interim custody to September 24, 2008, to proceed without the need for a Case Conference.

23On September 24, 2008, both parties appeared before Justice van Rensburg, who adjourned the matter to October 2nd to allow Mr. Mubili to file responding material. Justice van Rensburg vacated the September 26th appointment for a Case Conference and continued the Order of Justice Belleghem from September 17th.

24Mr. Mubili delivered his answer to his wife’s application on September 29, 2008. In it, he made his own claim for custody and child support. He also delivered material in response to the wife’s motion for interim relief.

25On October 2, 2008, Justice Herold concluded that both parties were loving parents and that Isa’s best interests lay in residing with his mother, with access by the father, who is a mining engineer and works seven days per week two hours north of Saskatoon, for up to 96 consecutive hours on 10 days notice. He vacated Justice Belleghem’s order and made an interim order granting custody of Isa to his mother and access to the father.

26Justice Herold made no order for child support, based on the fact that the table amount of child support was $544.00 per month based on the father’s 2007 income of $59,575.00, the mother had a significant income, and the father was required to incur a high travel expense to visit with Isa. He ordered that a Case Conference be held on all outstanding issues on October 31, 2008.

27On October 31, 2008, Justice Mossip made a final Order for custody and access based on minutes of settlement that the parties had signed. The minutes provided that the mother was to have custody of Isa and that the father was to have access for up to 96 consecutive hours each month on ten days notice to the mother. Justice Mossip adjourned the issue of child support to a Settlement Conference to take place on May 19, 2009.

28Mr. Mubili made a motion returnable December 24, 2008, for a finding that his wife was in contempt of Justice Herold’s order of October 2, 2008 granting him access to Isa, by refusing to give him access and instead complaining to the police that he had harassed her. In his supporting affidavit, he stated that this was a re-issue of a motion dated November 10, 2008, which had been heard on November 26, 2008, by Justice Clark, who he said had not made an order but had only amended Justice Mossip’s endorsement from October 31st to change May 18, 2008 to May 19, 2009 as the date for the parties’ Settlement Conference.

29In fact, Justice Clark had made a further endorsement on November 26, 2008, dismissing Mr. Mubili’s motion to have his wife found in contempt. He found that both parties had been less than cooperative but that the level of conduct had not reached the threshold of contempt. He directed that on any future visits, the wife would cooperate in the transfer, which as far as possible should be done without involving the police. Accordingly, Mr. Mubili’s motion was withdrawn on its return date of December 24, 2008, and Justice van Rensburg ordered him to pay the wife’s costs of $ 200.00.

30Mr. Mubili made a motion before Justice Miller on February 25, 2009, for an order setting aside Justice Mossip’s consent Order of October 31, 2008, and directing that his wife be charged with perjury for misrepresentations made in the material she had filed for the settlement conference. Justice Miller found that it was clear on the material before her that if any of the wife’s evidence before Justice Mossip was untrue, Mr. Mubili knew this when he signed the minutes of settlement. She therefore dismissed Mr. Mubili’s motion to set aside Justice Mossip’s order.

31Mr. Mubili made a further motion returnable April 22, 2009, to adjourn the parties’ Settlement Conference from May 19, 2009, on the ground that he had been laid off from his previous employment and was now on probationary employment with his new employer through July 2009 and had medical appointments in June. On April 22, 2009, Justice Coats made an order bringing the Settlement Conference forward to May 6, 2009, when Mr. Mubili was to be in Court in Milton for related court matters.

32At the Settlement Conference on May 6, 2009, Justice Coats scheduled the issue of child support to be tried for two days during the week of December 14, 2009, and directed that a Trial Management Conference be held on September 25, 2009.

33Justice Hourigan conducted the Trial Management Conference on September 25, 2009. He concluded that the trial will require at least four days, as Mr. Mubili plans to call twelve witnesses and his wife has indicated that she will testify and will be calling a witness from Caneco.

Court File No. DC-09-40 – Appeal by Mr. Mubili from Justice Miller’s Order of February 25, 2008

34Mr. Mubili appealed to the Divisional Court from Justice Miller’s Order of February 25, 2008. He also made a motion to extend the time for bringing that appeal, on the ground that his first filing of the appeal at the Divisional Court had been returned to him as the Court required a properly certified copy of the Order appealed from and there had been a delay in Justice Miller’s Order being mailed to him.

35Ms. Zinyama-Mubili made a motion returnable May 13, 2009, for an order striking out her husband’s Notice of Motion and for an Order pursuant to Rule 14 (21) of the Family Law Rules to prevent him from making further motions without leave, and for an Order for Security for Costs and for retroactive and ongoing child support.

36Justice Langdon heard both parties’ motions on May 13, 2009. He dismissed the wife’s motion to strike her husband’s motion and extended the time within which Mr. Mubili could appeal Justice Miller’s Order to June 15, 2009. He declined to order Mr. Mubili to pay security for costs but ordered, pursuant to Rule 14 (21), that he not bring any further motions except his appeal from Justice Miller’s order, without leave of the Court.

37His wife moved to strike out his Notice of Appeal. On August 20, 2009, Justice Wein adjourned Ms. Zinyama-Mubili’s motion to September 25, 2009. She extended the time for Mr. Mubili filing his appeal and related documents and for his wife filing her response be extended to September 25 or as the judge hearing the motion ordered, so that neither party would be prejudiced by time limits or delay.

Court File No. 1770/09 – Action by Mr. Mubili against Peter Chandwe Zinyama

38Mr. Mubili commenced this action against his wife’s father Peter Zinyama on November 14, 2008, seeking damages for trauma and anguish Mr. Zinyama allegedly caused him by holding his son hostage and demanding ransom.

39Mr. Zinyama lives in Burlington, but Mr. Mubili began the action against him in Saskatoon, where Mr. Mubili lives. On January 27, 2009, Justice Koch of the Saskatchewan Court of Queen’s Bench made an order transferring the action to Ontario.

40After the action arrived in Milton, Mr. Mubili made a motion to amend his pleadings and to consolidate the action with action no. 2108/09 against Mr. Chona and Mr. Mununga. Mr. Zinyama made a cross-motion for summary judgment dismissing Mr. Mubili’s action. In Mr. Zinyama’s supporting affidavit, he asserted that Mr. Mubili’s wife had given Mr. Zinyama’s wife permission to take their grandson to Zambia. Mr. Mubili admits this fact in his statement of claim in action no. 1771/09.

41Mr. Zinyama further asserts that Mr. Mubili tried to coerce him into signing documents, apparently with a view to having his marriage to Mr. Zinyama’s daughter annulled, and became enraged when Mr. Zinyama refused. Mr. Zinyama submits that Mr. Mubili brought his action against him for the purpose of intimidating and harassing him and his daughter.

42On May 20, 2009, Justice Quigley ordered Mr. Mubili to pay $15,000.00 as security for costs for this action and ordered him not take any further steps in the action, apart from moving to set aside Justice Quigley’s order, without leave of the Court and before paying the security for costs as well as the defendant’s costs of the motion, fixed at $3,500.00.

Court File No. 2108/09 – Action by Mr. Mubili against Thomas Chona and Lewis Mununga.

43Mr. Mubili began this action in Saskatoon on November 17, 2008. He sued both defendants for breach of trust and one of them for defamation. According to the defendants, the action arose from the fact that they and their respective wives had allowed Mr. Mubili’s wife and child to visit them since her arrival in Canada, contrary to the wishes of Mr. Mubili, who felt that his wife should be isolated as punishment for not following him to Saskatoon.

44On January 27, 2009, Justice Koch of the Saskatchewan Court of Queen’s Bench made an order, on a motion by the defendants, transferring the action to Ontario. Mr. Mubili applied to the Saskatchewan Court of Appeal for leave to appeal from that order. Justice Smith of the Court of Appeal made an order on March 12, 2009, dismissing Mr. Mubili’s application and ordering him to pay the defendants’ costs of $1,500.00.

45After the action arrived in Milton on March 23, 2009, Justice Ricchetti made an order on May 6, 2009, dismissing Mr. Mubili’s motion to amend his pleadings and to consolidate the action with action no. 1770/09. Justice Ricchetti granted the defendants summary judgment, dismissing Mr. Mubili’s claim and requiring him to pay the defendants’ further costs, fixed at $2,961.00.

Court File No. 1771/09 – An Action by Mr. Mubili against Ms. Zinyama-Mubili

46Mr. Mubili also began this action against his wife on November 17, 2008. In it, he claims damages for trauma and anguish he alleges he suffered when she caused the police to arrest him without cause when he arrived at Pearson Airport after returning his son from Zambia.

47Mr. Mubili’s wife lives in Burlington but Mr. Mubili began the action in Saskatoon. On January 27, 2009, Justice Koch of the Saskatchewan Court of Queen’s Bench made an order transferring the action to Ontario. After the action arrived in Milton, Mr. Mubili made a motion to amend his pleadings and to consolidate the action with Court File No. 1770/09 against his wife and her father, Peter Zinyama. The defendant made a cross-motion for summary judgment dismissing Mr. Mubili’s action or, in the alternative, for an order directing that it be tried with the family law action no. 5514/08 and for security for costs.

48In Ms. Zinyama-Mubili’s supporting affidavit, she asserted that Mr. Mubili’s claim arose from the same events that were the subject of the family law proceeding in which she claims child support from July 1, 2008. She further stated that the Court previously considered the allegations of perjury and contempt that Mr. Mubili relies on in support of his claim for damages, in a motion that he brought in the family law proceeding, which was dismissed without costs on December 24, 2008.

49On May 20, 2009, Justice Quigley ordered Mr. Mubili to pay $15,000.00 as security for the costs of this action and ordered him not to take any further steps in the action, apart from moving to set aside Justice Quigley’s order, without leave of the Court and before paying the security for costs and the defendant’s costs of the motion, fixed at $3,500.00.

Analysis and Evidence

Has Mr. Mubili Appealed to the Proper Court?

50Justice Mossip’s order of October 31, 2008, was a final order. No appeal was taken from it.

51Justice Miller’s order refusing to set aside Justice Mossip’s order was an interlocutory order, since it did not decide the issue of custody and access on a final basis. The final order was made by Justice Mossip. Therefore, an appeal from Justice Miller’s order lies to the Divisional Court with leave of a judge of the Superior Court.¹ In Antique Treasures of the World Inc. v. Bauer², the Court of Appeal held that an appeal from an order of Dunn J. refusing to set aside the order of Clark J. striking out the Appellant’s Statement of Defence and Counterclaim was an interlocutory order because it had been Clark J.’s order, not Dunn J.’s order, which had finally decided the main issue in the action.

52On this basis, I find that Mr. Mubili’s route of appeal was properly to the Divisional Court. However, he required leave to make his appeal and was required to apply for such leave to a judge of the Superior Court pursuant to s. 19 (1) (b) of the Courts of Justice Act. Mr. Mubili asserts that Justice Langdon granted him this leave. This is not so.

53Mr. Mubili states, in paragraph 17 of his affidavit sworn August 28, 2009, in support of the present motion:

17. As I had run out of time trying to figure out where to file my appeal (the Court of Appeal finally pointed me to the Divisional Court), I brought a motion before Langdon, J. on May 13, 2009, for leave to appeal. I was granted leave, as per Langdon, J.’s Order issued May 13, 2009, under Tab 9.

54In fact, Mr. Mubili did not seek leave to appeal in his motion before Langdon J. and Justice Langdon did not grant such leave. Mr. Mubili’s Notice of Motion, returnable May 13, 2008, stated under the order requested:

1. I respectfully request that this Honourable Court extend my time to appeal the judgment of the Honourable Justice Miller dated February 25, 2009, pursuant to Rule 38 of the Family Law Rules.

55Rule 38 of the Family Law Rules provides that Rules 61, 62 and 63 of the Rules of Civil Procedure apply with necessary modifications to appeals to the Divisional Court and Court of Appeal. Rule 62.02 (1) is the applicable Rule. It provides:

62.02 (1) Leave to appeal to the Divisional Court under clause 19(1)(b) of the Act shall be obtained from a judge other than the judge who made the interlocutory order. (2) The notice of motion for leave shall be served within seven days after the making of the order from which leave to appeal is sought or such further time as is allowed by the judge hearing the motion.

56Justice Langdon granted the relief that Mr. Mubili requested under Rule 38, which incorporates the timelines contained in Rule 62.02 (2) of the Rules of Civil Procedure. He ordered, with regard to Mr. Mubili’s motion:

(2) Time within which the appeal may be filed (or leave to appeal, as the case may be) is extended to June 15, 2009 (5514/08).

57It is clear from the Order that it grants only an extension of time to apply for leave to appeal. Mr. Mubili had not applied for leave; only for an extension of time.

58The parties have made their motions to me as a judge of the Divisional Court, as appears from their Notices of Motion. A judge of the Divisional Court cannot grant leave to appeal to the Divisional Court under section 19(1)(b). See Hrab v. Hrab.³

Has Mr. Mubili Appealed within the Prescribed Time?

59Rule 62.02(2) provides that a notice of motion for leave shall be served within seven days after the making of the order from which leave to appeal is sought or within such further time as is allowed by the judge hearing the motion. Justice Langdon, in his order of May 13, 2009, extended the time for applying for leave to June 16, 2009. Justice Wein, in her order of August 20, 2009, further extended the time to September 25, 2009, or to such other time as the judge hearing the motion ordered. It therefore falls to me to decide whether Mr. Mubili should be granted a further extension of time within which to apply for leave to appeal.

Is Mr. Mubili’s Appeal an Indirect Attack on Interim Orders?

60It is true that on September 17, 2008, Justice Belleghem made an ex parte order granting Ms. Zinyama-Mubili temporary custody of Isa and on October 2, 2008, Justice Herold, after hearing both parties, made a temporary order that Isa reside with his mother with access to the father. However, Justice Herold vacated Justice Belleghem’s ex parte order and specifically reserved the issues of custody and access to the judge presiding at the Settlement Conference on October 31, 2008.

61In these circumstances, it cannot be said that Mr. Mubili’s appeal from Justice Miller’s order dismissing his motion to set aside the consent order that Justice Mossip made on October 31, 2008, was a collateral attack on those earlier orders. Justice Belleghem’s order was an ex parte order, which lasted only until it was superseded by Justice Herold’s Order. Justice Herold’s order was also a temporary one, lasting only until the Settlement Conference. It was superseded by Justice Mossip’s order of October 31, 2008, based on the parties’ minutes of settlement.

62Rather than being a collateral attack on Justice Herold’s order, Mr. Mubili’s motion, if successful in reversing Justice Miller’s order refusing to set aside Justice Mossip’s order, would have the effect of re-instating Justice Herold’s order of October 2, 2008, unless a further order was made in substitution for it. Since Justice Mossip’s order was made on consent and at a Settlement Conference, there is no real likelihood that the Divisional Court would substitute its own decision as to custody and access for the one made by Justice Mossip. The matter would rather be adjourned to a new hearing before a different judge.

Is Ms. Zinyama-Mubili’s Motion Procedurally Unfair?

63Mr. Mubili submits in paragraph 20 of his affidavit sworn August 28, 2009, that:

Agnes initiated this motion using ambush tactics. My efforts to try and talk her into adjourning failed (Exhibit M1 under Tab 7) and on August 20, 2009, I submitted by fax a request for adjournment and was successful (see Exhibit M5 - Wein, J’s Order issued August 29, 2009, under Tab 8).

64Exhibit M1 is an exchange of e-mails between Mr. Mubili and his wife. Mr. Mubili sent the first e-mail on Thursday, August 13, 2009, at 5:47 p.m. It states:

Trial by ambush is not permitted by the judicial system. I am given to understand that you’ve brought up a motion returnable next Thursday when you know full well that I am in the bush and will be returning on the day. So I am giving you an opportunity to stop that forthwith in light of the above. Alternatively, if you decline to do this I will be forced to request for adjournment (from the bush) and then bring my motion to set aside your motion where I will be asking for costs against you. You’ll not be allowed to get away with an ambush trial this time around.

65Mr. Mubili’s wife replied by e-mail at 8:50 p.m. the same day: “Mr. Mubili, I have brought a motion to address important issues with your appeal. You have legal rights and so do I. If you wish to adjourn, you know the process.”

66As noted above, Justice Wein adjourned Ms. Zinyama-Mubili’s motion to September 25, 2009, the same date when Mr. Mubili was required to attend for the earlier scheduled Trial Management Conference. Justice Coats had scheduled the conference on that date in the presence of both parties on May 6, 2009.

67While it may appear to Mr. Mubili that his wife was seeking to ambush him by scheduling her motion with a return date of August 20th when she knew that he would be returning from the bush that day, the facts also support the alternative explanation that she selected that date because it was one when she had reason to believe that he would be available. It does not appear from the material before me that she resisted his request for an adjournment of her motion. In any event, Justice Wein adjourned the motion for more than a month, which gave Mr. Mubili ample time to prepare for it and to deliver responding material, which he did.

68Based on the foregoing, I do not find that Ms. Zinyama-Mubili’s motion to be procedurally unfair. If there was such unfairness, it was cured by the adjournment that Justice Wein granted and does not justify extending further latitude to Mr. Mubili in relation to the appeal he seeks to bring from Justice Miller’s order.

Discretion as to the Granting of a Further Extension of Time

69If a motion for leave to appeal by Mr. Mubili were properly before me, I would be obliged to consider Rule 62.02 (4) of the Rules of Civil Procedure, which sets out the grounds upon which leave may be granted. That Rule provides as follows:

62.02 (4) Leave to appeal shall not be granted unless, (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

70In Hudersfield Banking Company, Limited v. Henry Lister & Son Kunuted⁴, Lindsay L.J. held that a consent order could be impeached on any ground (including fraud) that would invalidate the agreement giving rise to the consent order. The general principle set out in these authorities was accepted by this court in Monarch Construction Ltd. v. Buildevco Ltd. et al.⁵

71A consent judgment is final and binding and can only be amended when it does not express the real intention of the parties or where there is fraud. In other words, a consent judgment can only be rectified on the same grounds on which a contract can be rectified.

72If the evidence is not capable of supporting a conclusion that the underlying contract (the minutes of settlement) should be invalidated, then there was no basis to set aside the consent judgment. It was Justice Miller’s view that the evidence did not support the conclusion that Ms. Zinyama-Mubili had deliberately misrepresented fact material to Mr. Mubili’s decision to sign the minutes of settlement.

73Mr. Mubili acknowledged before Justice Miller that what he now alleges were misrepresentations by his wife were known to him before he signed the minutes of settlement on October 31, 2008. This appears from the following exchanges in the transcript:

THE COURT: …The difficulty I have, sir, is this, these things that you say are falsehoods were known - if they are falsehoods… MR. MUBILI: Yeah. THE COURT: …you knew they were falsehoods before you entered into the agreement on October 31st. MR. MUBILI: Like, like…. THE COURT: …so there’s not a reason for me to now set aside an agreement that you mutually came to on that date. THE COURT: I understand you have concerns about representations that have been made. MR. MUBILI: Yes THE COURT: But all of this happened before October 31st. MR. MUBILI: Yes. THE COURT: Right. MR. MUBILI: Yeah.

74It appears from the transcript that what later caused Mr. Mubili to seek to resile from the settlement he had entered into was the fact that his wife did not abandon her claim for support as he had hoped she would in exchange for his agreeing to her having custody of Isa. The issue of support was instead adjourned to a Settlement Conference on May 19, 2009. Mr. Mubili explained his disappointment to Justice Miller in the following terms:

MR. MUBILI: Like, you know, I would like - actually, if it is possible to discontinue this action and if we can settle out of court. In exchange, I’m going to offer her custody and I can just have, you know, access. For the sake of that, can we be able to do that and it was agreed. So we went downstairs, we drafted everything…and then when we got back to the court she then, you know, brought back some of the, some of the things - child support and everything, issues that I thought we were competent enough to, you know, deal with them in a reasonable way as parents of Isa, you know, outside of court. So which means that I was actually found myself in a Catch 22 that, you know, what I was trying to achieve by discontinuing the action so that we can, you know, live like reasonable human beings and try to manage things outside of the court did not actually work. THE COURT: Okay. So what happened with respect to child support is that the Court made no decision about it that day and put it over to a settlement conference, it says here May 19th, 2008, but what is meant is May 19th, 2009. MR. MUBILI: Well, I was under the impression that, you know, we were not going to appear before the Court again. I was actually looking to discontinue there and then and without having any further - because, you know, that settlement conference….

75Whatever Mr. Mubili’s expectation might have been as to whether his wife would continue pursuing her claim for child support, this is not a basis upon which the Court would interfere with either Justice Mossip’s or Justice Miller’s order. Support must be approached independently of custody and access issues, although the latter may affect a parent’s entitlement to child support, depending on the proportion of time the child resides with each parent.

76It would not be in the interests of justice for me to grant Mr. Mubili a further extension of time within which to apply for leave to appeal from Justice Miller’s order. Justice Mossip’s order was made almost a year ago. Mr. Mubili did not appeal from it. Justice Miller’s order refusing to set aside Justice Mossip’s order was made more than six months ago. An appeal from Justice Miller’s order required leave from a judge of the Superior Court which Mr. Mubili has not obtained. I am not persuaded that Mr. Mubili genuinely believed that he had applied for or obtained leave from Justice Langdon to appeal to the Divisional Court and it would not be fair to Ms. Zinyama-Mubili to grant him more time today to apply for such leave.

77There is also no genuine basis upon which an appeal from Justice Miller’s order could reasonably be expected to succeed. It is clear from the material before me, as it was to Justice Miller, that any misrepresentations that Ms. Zinyama-Mubili may have made in the material she had filed in Court for the October 31, 2008, conference were not material to Mr. Mubili’s decision to sign the minutes of settlement that day. His reason for seeking to appeal, in my opinion, arises from the impact that the agreement may have on his wife’s entitlement to child support, which remains to be tried in December.

78Mr. Mubili has also not advanced any material on which I would conclude that the terms of custody and access contained in the minutes of settlement were not in Isa’s best interests. The material before me suggests that his interests are best served by continuing to reside with his mother in Burlington with access to be exercised by Mr. Mubili. If Mr. Mubili’s work location and hours change and he ceases to be working seven days per week, two hours north of Saskatoon, this might amount to a material change of circumstances that would entitle him to apply for a variation of custody and access in any event.

79In the meantime, I agree with Justice Miller’s observation that each of the parties has control over when these proceedings end and I join in her encouragement to end them soon because they are not doing their son any good.

80Based on the foregoing, it is ordered that:

1. Mr. Mubili’s motion to strike his wife’s motion is dismissed;

2. Ms. Zinyama-Mubili’s motion to strike Mr. Mubili’s Notice of Appeal is allowed.

3. Mr. Mubili shall pay his wife’s costs, which I fix at $3,000.00, to be paid within thirty days.

Price, J.

Released: October 7, 2009

COURT FILE NO.: DC-09-0040-00

(Family Court File Number: 5514-08)

Footnotes

1. 1Courts of Justice Act, R.S.O. 1990, Chap. C.43, s. 19 (1)(b)
2. 2Antique Treasures of the World Inc. v. Bauer, 2003 35349 (ON C.A.)
3. 3Hrab v. Hrab (1992), 1992 8558 (ON SCDC), 88 D.L.R. (4th) 525 (Div. Ct)
4. 4Hudersfield Banking Company, Limited v. Henry Lister & Son, Limited (1895), 2 Ch. 273 (C.A.) See also: Canadian Imperial Bank of Commerce v. Whites Lake Services Limited et al. (1982), 1982 5313 (NS SC), 32 C.P.C. 128 (N.S. Co. Ct.); Re Kline, 1923 440 (NS CA), [1924] 1 D.L.R. 295 (N.S.S.C.)
5. 5Monarch Construction Ltd. v. Buildevco Ltd. et al. (1988), 26 C.P.C. (2d) 164 at 165-166 (Ont. C.A.)