CITATION: Misheal v. Okel, 2008 ONCA 832
DATE: 20081210
DOCKET: C48150 and C49242
COURT OF APPEAL FOR ONTARIO
Cronk, Gillese and Epstein JJ.A.
BETWEEN:
Docket: C48150
Peter Misheal
Applicant (Appellant)
and
Mona Okel (also known as Mulhima Okel)
Respondent
AND BETWEEN:
Docket: C49242
Mona Okel (also known as Mulhima Okel)
Respondent
and
Peter Misheal
Applicant (Appellant)
Peter Misheal, in person
Mona Okel, in person
Heard: December 3, 2008
On appeal from the Order of Justice D.F. Baltman of the Superior Court of Justice dated July 23, 2008 and from the Order of Justice G. Miller of the Superior Court of Justice dated November 22, 2007.
BY THE COURT:
[1] The appellant, Peter Misheal, appeals the following two orders in this family law case: (i) the order of Baltman J. of the Superior Court of Justice dated July 23, 2008, dismissing the appellant’s motion to vary the support provisions of the trial judgment of Coats J. of the Superior Court of Justice dated March 13, 2007 based on an alleged material change in circumstances and to stay enforcement of support arrears by the Family Responsibility Office (the “FRO”) (the “Variation Order”); and (ii) that part of the order of Miller J. of the Superior Court of Justice dated November 22, 2007 directing that certain net proceeds of sale relating to the disposition of real property located on Argus Road in Oakville be paid to the FRO, by no later than December 3, 2007, on account of support arrears in the sum of $121,686.18 (the “Arrears Order”). The respondent, Mona Okel, resists both appeals. Before this court, both parties are self-represented.
[2] In our view, for the reasons that follow, both appeals must be dismissed.
(1) Preliminary Procedural Matter: Adjournment Request
[3] On December 1, 2008, this court received correspondence from one Jodi Hutchinson who claimed to be the sole shareholder of Zoned Use Property Inc. (“Zoned Use”), the apparent owner of the Oakville property above-described. Ms. Hutchinson requested that the appeal from the Arrears Order be adjourned to permit Zoned Use to obtain legal counsel and to participate in the appeal because the Arrears Order was allegedly “levied against the company [Zoned Use] which owes no debt to Ms. Okel [the respondent].” Ms. Hutchinson stated that she was seeking legal advice and counsel to represent Zoned Use on the appeal, that she resides in Halifax and that, to date, Zoned Use has been unable to obtain counsel. Ms. Hutchinson’s adjournment request did not appear to have been copied by her to the parties.
[4] In response to her correspondence, Ms. Hutchinson was informed by court staff that unless an earlier conference call motion for an adjournment was arranged on notice to all parties, it would be necessary for her, or for an agent on behalf of Zoned Use, to attend before the Panel on December 3, 2008 to request standing on the appeal and an adjournment of it.
[5] Ms. Hutchinson did not attend before this court on December 3, 2008 when argument of the appeal from the Arrears Order was scheduled to commence. Nor did Ms. Hutchinson or Zoned Use make any effort to schedule an earlier motion by conference call to request an adjournment of the appeal. However, at the outset of oral argument, the appellant requested an adjournment of the appeal on behalf of Zoned Use. In so doing, he stated that he had initiated the appeal from the Arrears Order “on behalf of ” Zoned Use because the Arrears Order affected that company, that he had no connection with Zoned Use, and that the Arrears Order had been made against Zoned Use although that company did not participate in the motion before Miller J. The respondent opposed the appellant’s adjournment request.
[6] We rejected this adjournment request for several reasons. First, Zoned Use is not a party to the appeal from the Arrears Order. Second, Ms. Hutchinson’s communication of December 1, 2008 appears to have been the first contact by her with this court in respect of the appeal, notwithstanding that the appeal was initiated almost one year ago. Third, the appeal concerns the enforcement by the FRO of support arrears owed by the appellant to the respondent. As we explain below, the appellant was represented by an agent during the proceeding before Miller J. and agreed to that part of the Arrears Order that the appellant now seeks to challenge. Finally, contrary to the appellant’s assertion, the record indicates that Zoned Use is a company owned or controlled by him. In her reasons in support of her trial judgment dated March 13, 2007, the trial judge (Coats J. of the Superior Court of Justice) found that Zoned Use is owned by the appellant. Moreover, the Oakville property, and the business operated on it, formed part of the assets in dispute at trial and the appellant listed the Oakville property as part of his assets on his net family property statement, filed at trial.
(2) Appeal from the Variation Order
[7] The parties were married on October 6, 1985, and separated in February 2002. There are three children of the marriage: Anna, born August 2, 1986; Theodore, born July 10, 1988; and Chantelle, born March 22, 1991. The respondent has sole custody of the three children.
[8] On March 13, 2007, following an 18-day trial, the trial judge ordered the appellant to pay child support for Theodore and Chantelle in the amount of $1,644 per month and spousal support in the amount of $2,000 per month, based on the appellant’s imputed annual gross income of $120,000. The appellant appealed to this court from the trial judge’s decision. That appeal is still pending.
[9] The appellant also moved to vary the support awards made by the trial judge on the basis of an alleged material change in circumstances. By order dated January 10, 2008, this first motion to vary was dismissed by Murray J. of the Superior Court of Justice. The appellant’s appeal to this court from that order was dismissed on October 3, 2008.
[10] In dismissing the appellant’s appeal from Murray J.’s order, this court indicated its agreement with the motion judge that the material filed by the appellant in support of his motion to vary failed to disclose a change in circumstances. As well, the appellant had failed to comply with rule 15(7) of the Family Law Rules regarding financial statements. The respondent was awarded her costs of the appeal, fixed in the total amount of $500.
[11] Only one month after the dismissal of the appellant’s first variation motion, and while the appellant’s appeal from that dismissal was still pending, the appellant brought a second identical variation motion, again seeking to vary the trial judge’s disposition regarding support based on an alleged material change in circumstances. The appellant alleged that this second variation motion was based on facts that differed from those that had been before Murray J.
[12] The second variation motion was adjourned by order of M.G.J. Quigley J. of the Superior Court of Justice dated March 26, 2008, and rescheduled to be heard on June 30, 2008. It was then adjourned a second time by order of Fragomeni J. of the Superior Court of Justice dated June 30, 2008, and rescheduled to be heard on July 23, 2008.
[13] When the matter eventually proceeded before Baltman J. of the Superior Court of Justice on July 23, 2008, the appellant’s motion was dismissed in its entirety, in part on the basis that it was an abuse of process. The motion judge stated:
The husband currently has 4 (four) outstanding appeals, all arising out of the same matters dealt with by Coats, J. He has already brought a motion to vary Coats J.’s judgment which was dismissed by Murray J., on January 10, 2008 (in part because there was no evidence of a change in circumstances) which is now under appeal. The husband brought a motion before the Ontario Court of Appeal on June 5, 2008 to stay the support payments pending appeal of Coats J.’s judgment, which was dismissed.
While in theory the husband has the right to move to vary upon a material change, we cannot on any whim reinstigate proceedings that are essentially identical to ones he has recently lost and has under appeal. The husband is essentially trying to relitigate the motion already dismissed by Murray J., relying upon what is in my view the identical grounds and essentially the same evidence or at least evidence that could or should have been raised previously. This violates what Arbour J., calls the “principles of judicial economy, consistency, finality and the integrity of the administration of justice”: Toronto v. CUPE Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paras. 35-55.
[14] We agree with this conclusion and with the motion judge’s reasoning in support of it. The appellant’s second variation motion was an effort to relitigate an issue already adjudicated by Murray J. As we have said, the appellant’s appeal from the order of Murray J. was dismissed by this court. The appellant now attempts to renew before this court the same arguments considered and rejected by Baltman J., based on essentially the same evidence and grounds for variation unsuccessfully advanced before Murray J.
[15] The appellant claims that Baltman J. erred by proceeding to determine his second variation motion on the merits when the purpose of the attendance before the motion judge was to resolve the preliminary issue whether the court had jurisdiction to entertain such a variation motion while the appellant’s appeal from the trial judgment, which fixed the support awards in issue, was outstanding. The appellant complains that the motion judge failed to consider the jurisdictional question, as illustrated by her failure to mention it in her reasons.
[16] We disagree. It is implicit in the motion judge’s reasons – including, in particular, in her review of the recent history of these proceedings – that she considered and rejected the proposition that the court lacked jurisdiction to entertain a support variation motion while the main appeal from the trial judgment remained outstanding. For that reason, the motion judge dealt with the motion on the merits, taking into account the submissions of the parties. She made no error in so doing.
[17] We conclude, therefore, that there is no basis for appellate interference with the Variation Order.
(3) Appeal from the Arrears Order
[18] The appellant’s challenge to the Arrears Order is also unsustainable. He makes three complaints. First, he argues that he was precluded from “meeting the case put forward by the respondent as the respondent did not put forward any case”. Second, he submits that there was no basis for the writ of seizure and sale in the first place and that the issuance of the writ was the result of administrative error. Finally, he claims that there was no evidence before the court supporting an order securing amounts for support.
[19] There is no merit to these submissions. The Arrears Order vacated the charging order on the Oakville property. Any complaint regarding the events leading up to the charging order were addressed by the order vacating it.
[20] Moreover, contrary to the appellant’s contention, there was uncontroverted evidence before the motion judge establishing the arrears of support owed by the appellant as at the date of the Arrears Order. The transcript of the proceeding indicates that the respondent filed materials outlining her calculations of the outstanding support payments owed by the appellant. The motion judge also had the benefit of a sworn affidavit setting out the FRO’s calculations of the child and spousal support arrears owed as at the end of November 2007. In addition, the appellant’s agent acknowledged to the motion judge that the FRO’s calculations were correct, that the arrears in question totalled $121,686.18, and that the net funds realized on the disposition of the Oakville property were “more than sufficient” to cover the support arrears. Indeed, he stated: “The total that’s owing. It’s incontrovertible”.
[21] Finally, the transcript suggests that the appellant did not oppose the Arrears Order. Rather, his concern was to obtain an order vacating the charging order to permit the sale of the Oakville property, other than under distress conditions. This order was granted, at the request of the appellant’s agent, on condition that the support arrears be paid to the FRO from the net proceeds of sale.
(4) Disposition
[22] For the reasons given, both appeals are dismissed. The respondent is entitled to her costs of both appeals, fixed in the total amount of $1,500, inclusive of disbursements and G.S.T., payable by the appellant forthwith.
RELEASED:
“DEC 10 2008” “E.A. Cronk J.A.”
“EAC” “E.E. Gillese J.A.”
“G. Epstein J.A.”