COURT OF APPEAL FOR ONTARIO

CITATION: Horner v. Benisasia, 2013 ONCA 136

DATE: 20130306

DOCKET: C55960

Winkler C.J.O., Armstrong and Hoy JJ.A.

BETWEEN

Catherine Jane Horner

Applicant (Respondent)

and

Rick Khomal Benisasia (a.k.a. Khomal Rick Benipersaud)

Respondent (Appellant)

Stephen Codas and Lily Ng, for the appellant

David Pomer, for the respondent

Heard: February 27, 2013

On appeal from the order of Justice David Price of the Superior Court of Justice, dated July 26, 2012.

ENDORSEMENT

[1] The appellant, Rick Khomal Benisasia, appeals the July 26, 2012 order of the motion judge, Price J. (the “Order”), dismissing the appellant’s motion to set aside the interim, interim without prejudice order of Wein J. of June 26, 2012 requiring payment of child and spousal support and amounts for housing related expenses (the “Wein Order”).

[2] Briefly, the background is as follows.

[3] Rule 14(4.2) of the Family Law Rules permits a motion to be heard before a case conference if the court is of the opinion that there is a situation of urgency or hardship.

[4] On June 26, 2012, the respondent, Catherine Jane Horner, brought an urgent motion for a temporary order for payment of child and spousal support and continued payment of housing related expenses pending the case conference scheduled for September 18, 2012. The respondent’s evidence was that the mortgage had not been paid, she was unable to work for medical reasons, there was no food in the house to feed the children, and the line of credit was in arrears and she had no money to pay it.

[5] In response, the appellant filed a motion of a law clerk of his then counsel, seeking an adjournment. Wein J. concluded that the appellant could have responded to the motion, denied the adjournment and granted interim, interim relief, on a without prejudice basis, pending the case conference. Basically, Wein J. ordered the respondent to resume paying amounts that, on the evidence before her, the appellant had been paying since the parties’ separation some nine months before until the case conference.

[6] The appellant did not appeal the Wein Order. He instead brought a motion for an order setting aside the Wein Order, and requiring him to pay a lesser amount pending the case conference. In support of his motion, the appellant filed an affidavit. The respondent filed responding affidavits.

[7] The motion judge heard and dismissed the appellant’s motion on July 26, 2012.

[8] The appellant argues that motion judge: misapprehended the evidence, made unsupported findings of fact, did not give any or adequate consideration to sections 7, 15 and 19 of the Child Support Guidelines (the “Guidelines”), and did not apply the applicable legal principles for a court to change an order granted on short notice to prevent a miscarriage of justice. He further argues that the motion judge’s reasons are inadequate and do not permit meaningful appellate review.

[9] In our view, the appellant’s submissions are without merit and we accordingly dismiss this appeal.

[10] Before this court, the appellant argues that there were three bases on which it was open to the motion judge to change the Wein Order. First, Rule 25(19)(a) of the Family Law Rules permits the court to, on motion, change an order that was obtained by fraud. Second, Rule 25(19)(d) of the Family Law Rules permits the court to change an order that was made without notice. And third, he submits, the court has inherent jurisdiction at common law to set aside or change an order to prevent a miscarriage of justice where new facts have arisen or been discovered.

[11] The first argument was made to and squarely addressed by the motion judge. In his submissions on this issue, the appellant mischaracterizes the nature of the exercise before the motion judge. The motion judge was presented with conflicting affidavit evidence. His task was to determine whether the Wein Order had been obtained by fraud, not to resolve all of the factual differences in the evidence. (Indeed, the speediest way of resolving these differences would have been to proceed with the scheduled case conference and proceed to a final determination of the issues as quickly as possible.) Absent a finding that the Wein Order was obtained by fraud (or other precondition to variance of the order), it was not open to the motion judge to change the substance of Wein J.’s interim, interim without prejudice order, and unnecessary for him to consider the Guidelines.

[12] The motion judge considered each of the allegedly fraudulent statements made by the respondent in her affidavit in support of the Wein Order – namely that the respondent was at risk of losing the house, the appellant had stopped making payments in May and June 2012, and that the appellant had been supporting expenses of over $11,000 per month. He concluded that the Wein Order was not made based on false evidence and accordingly dismissed the motion. We are not persuaded that the motion judge made any palpable and overriding errors in coming to this conclusion. Moreover, the motion judge’s reasons for so concluding are, in our view, adequate and permit meaningful review.

[13] On this appeal, the appellant argues that the motion judge erred by failing to address the second and third bases on which the court could have varied on the Wein Order, and which he submits were addressed in the factum filed with the motion judge. A copy of that factum was not available. The respondent counters that the only issue argued before the motion judge was that addressed in his reasons, namely whether the Wein Order was obtained by fraud, and the only evidence before the motion judge related to the fraud issue. We will nonetheless briefly address these additional bases.

[14] As to the second asserted basis, the appellant argues that while he had received notice of the motion before Wein J., and was represented on the motion, the Wein Order was tantamount to an order made without notice, and the motion judge could therefore change it pursuant to Rule 25(19)(d) of the Family Law Rules.

[15] We do not fault the motion judge for not addressing this argument. It became clear to this court that the appellant also relied on Rule 25(19)(d) only in his response to an inquiry of this court; it was not clear to us from his factum, and, assuming the same arguments were made in the factum filed on the motion, we suspect it was similarly not clear to the motion judge. Moreover, there is, in our view, no merit to this argument.

[16] As to the third basis argued – the court’s inherent jurisdiction at common law to set aside or change an order to prevent a miscarriage of justice where new facts have arisen or been discovered – West v. West, 2001 CarswellOnt 1936, 18 R.L.F. (5th) 440 relied on by the appellant, notes that a “fairly stringent” test must be met before the court will exercise that jurisdiction. Without commenting on the applicability of that test in a context such as this, the test includes that the evidence sought to be relied on must not have been in existence or not discoverable by diligent effort by the party asking the court to change the order. That was clearly not the case. Moreover, Wein J. concluded that the appellant could have responded to the motion, and the Wein Order is an interim, interim without prejudice order designed to maintain the status quo pending a case conference. A change of the order is not needed to prevent a miscarriage of justice.

[17] In the result, this appeal is dismissed. The respondent shall be entitled to costs, inclusive of disbursements and applicable taxes, fixed in the amount of $20,000. This amount, plus the outstanding costs awards of Wein J. and the motion judge totalling $16,865, shall be paid forthwith.

“Warren K. Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“Alexandra Hoy J.A”