COURT OF APPEAL FOR ONTARIO

CITATION: Misheal v. Okel, 2013 ONCA 797

DATE: 20131230

DOCKET: M42706 (C46899)

Feldman, Epstein and van Rensburg JJ.A.

BETWEEN

Peter Misheal

Applicant

and

Mona Okel

Respondent

DOCKET: M43110

BETWEEN

Peter Misheal

Respondent

and

Mona Okel

Applicant

Peter Misheal, acting in person

Mona Okel, acting in person

Heard: November 22, 2013

On motion to re-open the appeal from the judgment of Coats J. dated March 13, 2007, which appeal was dismissed by the order of the Court of Appeal for Ontario, dated May 14, 2009, and on motion to set aside the order of Gray J. of the Superior Court of Justice, dated June 21, 2013.

ENDORSEMENT

[1] The two matters before us are part of a protracted battle between the parties over Peter Misheal’s financial obligations to his former wife, Mona Okel, and their children.

[2] In March 2007, a lengthy trial took place before Coats J. at the conclusion of which the trial judge ordered Mr. Misheal to make an equalization payment and pay child and spousal support. Mr. Misheal’s appeal of that judgment to this court was stayed in March 2009 pending payment of $54,690.93 in arrears of child and spousal support and $15,000 of outstanding costs awards. Mr. Misheal was required to pay these amounts within 60 days of the date of the order, failing which his appeal would be dismissed. The payment was not made and the appeal was dismissed by order of MacFarland J.A. dated May 14, 2009. Mr. Misheal’s application to review the order of MacFarland J.A. was dismissed on August 12, 2010.

[3] Before this court, Mr. Misheal seeks to re-open his appeal on the basis of fresh evidence that, in his submission, demonstrates that all of his support arrears have now been expunged by Gray J. in an order dated June 21, 2013.

[4] We cannot accede to Mr. Misheal’s request. The fact that an order was made in 2013 in an uncontested hearing in which his arrears were rescinded does not mean that the arrears did not exist in 2009 when Mr. Misheal’s appeal was dismissed, and does not affect the finality of the court’s order dismissing the appeal. The court does not have jurisdiction in these circumstances to revive the dismissed appeal.

[5] We now turn to the relief sought by Ms. Okel.

[6] After the trial, Mr. Misheal moved to Nova Scotia. Since then, he has successfully avoided meeting his court-ordered financial obligations to his family. To this end, he obtained two provisional orders from the Nova Scotia Supreme Court in 2011 and 2012 that expunged all of his support arrears from 2009 to July 2013. The Nova Scotia orders were sent to Ontario. Ms. Okel was provided the opportunity to respond. The matter came before Hourigan J. pursuant to rule 37.1 of the Family Law Rules (Provisional Orders and Confirmation of Provisional Orders – Divorce Act, Family Law Act). Hourigan J. ordered a hearing pursuant to rule 37.1(9) of the Family Law Rules as, in his view, Ms. Okel raised serious issues about Mr. Misheal’s credibility. Accordingly, a hearing with viva voce evidence was necessary.

[7] The court scheduled the hearing for June 21, 2013. Mr. Misheal brought a companion motion, returnable the same day, seeking to expunge allsupport arrears. For practical reasons, Ms. Okel was not able to attend. Although she had been notified of the date of the hearing, she advised court staff that she was unable to get off work. This was not communicated to Mr. Misheal or the presiding judge. In Ms. Okel’s absence, Gray J. in his order of June 21, 2013, confirmed the Nova Scotia orders and granted Mr. Misheal’s motion expunging all arrears of support and terminating all future support obligations.

[8] Ms. Okel then moved to set aside the order. On October 3, 2013 Donohue J. concluded that Ms. Okel was served and notified of the court date, and dismissed her motion under rule 25(19)(e) of the Family Law Rules.

[9] This has been high-conflict litigation that, since the judgment of Coats J., has involved a multitude of motions and a number of appeals. Gray J.’s decisions to confirm the Nova Scotia orders, expunge arrears not caught by those orders and terminate Mr. Misheal’s future support obligations, carry serious consequences. They deprive Ms. Okel and the parties’ children of all of the support ordered in Coats J.’s judgment. They were made in the absence of Ms. Okel as, for various reasons, she did not participate in the hearings in which the issues were considered and the determinations were made.

[10] The relief Ms. Okel seeks is procedurally flawed. However, in these unique circumstances it is clear that the interests of justice will be served by our exercising this court’s jurisdiction to assist these self-represented parties in bringing this lengthy resource-draining clash to an end. In our view, the only way to do this is through a full and fair hearing of the issues on the merits in which an Ontario judge is able to assess the credibility and reliability of the evidence and make the necessary findings of fact relevant to whether the dispositions Mr. Misheal seeks, with their serious implications, are warranted.

[11] For these reasons we have decided to treat Ms. Okel’s motion as a motion to extend time to appeal Justice Gray’s order and an appeal of that order. This treatment clearly reflects the substance of the relief requested. There is no prejudice to Mr. Misheal. All of the materials necessary to deal with the appeal on its merits were before the court, including Mr. Misheal’s affidavit sworn November 20, 2013, setting out his position in detail with respect to whether the order of Gray J. should stand. Ms. Okel’s arguments also have merit given the following: the hearing Hourigan J. ordered has not yet taken place; Ms. Okel did not participate in the proceedings before Justice Gray; and the consequences of those proceedings are severe: the order deprives the family of over $200,000 in support arrears plus any future support.

[12] For these reasons, we grant an extension of time to appeal the order of Gray J. and allow the appeal. The order is therefore set aside.

[13] The issue concerning the confirmation of the Nova Scotia orders and Mr. Misheal’s companion motion shall be determined at a hearing in accordance with the order of Hourigan J. We make no comment on the legitimacy of Mr. Misheal’s bringing a motion in Ontario to vary the support terms ordered by Coats J. on the basis of his inability to pay while at the same time seeking the assistance of the Nova Scotia court for the same relief on the same grounds. We leave that issue to the motion judge.

[14] Having regard to the history of the dispute between the parties, it is essential that both parties receive proper notice of the hearing. A date must be set for the hearing that is convenient to both parties well in advance of the hearing date.

[15] Given our decision to set aside the order of Gray J. of June 21, 2013, the order of Donohue J. no longer has any force or effect.

[16] There will be no order as to costs.

“K. Feldman J.A.”

“Gloria Epstein J.A.”

“K. van Rensburg J.A.”