Okel v. Misheal, 2010 ONCA 562

CITATION: Okel v. Misheal, 2010 ONCA 562

DATE: 20100827

DOCKET: M37583 (C46899) and C51751

COURT OF APPEAL FOR ONTARIO

Rosenberg, Goudge and Feldman JJ.A.

BETWEEN:

Mona Okel (also known as Molhima Okel)

Respondent (Applicant)

and

Peter Misheal (also known as Botros H. Misheal)

Appellant (Respondent)

Mona Okel, in person

Peter Misheal, in person

Heard: August 12, 2010

ENDORSEMENT

[1] There are two matters before this court:

(1) A review of decisions of MacFarland J.A. in M37568 and M37577.

(2) An appeal from the decision of Murray J. of December 29, 2009.

The Review

[2] This attempt to review the decision of MacFarland J.A. is misconceived. The appellant attempted to appeal the decision of Coats J. of March 13, 2007 made following a trial. On March 6, 2009 a panel of this court ordered that the appeal be stayed pending payment of $54,690.93, being arrears of spousal and child support and $15,000 of the outstanding final costs orders. The order provided that the appellant had 60 days to pay those amounts to the respondent, "failing which an order will go dismissing the appeal". The appellant did not make the payments as ordered. Rather, he brought a motion returnable before a single judge on May 14, 2009 for an order staying his own appeal pending an application he had brought before the Superior Court of Justice to vary the order of Coats J. This motion came on before MacFarland J.A. who held as follows:

By order of this court made March 6/09 Mr. Misheal was ordered to pay certain monies within 60 days. He has not done so. Accordingly, by the terms of the March 6 order his appeal is dismissed and his motion is also dismissed as there is no outstanding appeal.

[3] We agree with MacFarland J.A. The appeal having been dismissed, there was no appeal to stay. Accordingly, the application to review her order is dismissed.

The Appeal from Murray J.'s Decision

[4] This is the latest in a number of proceedings taken by the appellant in an attempt to overturn or vary the support orders made by Coats J. See, for example, the decisions of this court at 2008 ONCA 674 and 2008 ONCA 832. The appellant submits that there has been a material change in circumstances, namely, that he has become so disabled that he is unable to work and therefore unable to make the support payments ordered by Coats J. The transcript shows that Murray J. made it clear during the hearing that he was not satisfied with the quality of the evidence the appellant relied upon to show that he was disabled. He gave the appellant several opportunities to adjourn the hearing so that he could get better evidence. The appellant refused those offers. It was open to the application judge to reject the evidence relied upon by the appellant. He explained why he considered the evidence suspect and unreliable both during the hearing and in his endorsement and, as we have said, Murray J. gave the appellant every opportunity to adjourn to obtain better information. We see no reversible error in the findings made by Murray J. based on the record before him.

[5] The appellant has included in his appeal book a letter from a Dr. Couban, a letter from a Dr. Beveridge and a report from a Dr. Leckey. He has also included a Physiotherapy Progress Report, various documents showing he attended for physiotherapy and a list of medications. There are a number of problems with this material. First, if this was intended to be fresh evidence, the procedure for adducing fresh evidence has not be followed and there is no affidavit that provides the information necessary to receive this material as fresh evidence.

[6] In any event, the material is not admissible because it would not have affected the result of the application. The letter from Dr. Couban is merely an explanation that he hoped the clinic would be able to see the appellant in the next 12 months. The letter explains that priority is given to patients who are the most unwell and according to the information from the appellant's physician "we hope to be able to see you within the next 12 months". The appellant is urged in the meantime to remain in contact with his family physician.

[7] The letter from Dr. Beveridge records that it appears the appellant has "severe degenerative disc disease at least 4 levels". The letter gives no opinion as to the appellant's ability to obtain employment similar to his pre-separation employment.

[8] The only report that goes any way towards showing a disability is the report from Dr. Leckey. However, since this report was not properly placed before the court its authenticity and reliability have not been tested. Moreover, there is no report, letter or affidavit from Dr. Pennell, to whom the report was directed. This court is in no position to determine the weight, if any, to be attached to the report of Dr. Leckey. It is not open to an appellant to simply include documents in an appeal book and expect this court to rely upon the information. To do so is unfair to the respondent and is of no assistance to this court.

[9] Accordingly, the appeal from the decision of Murray J. is dismissed.

[10] There will be no costs of the application or the appeal.

Signatures: "M. Rosenberg J.A."

"S. T. Goudge J.A."

"K. Feldman J.A."