CITATION

CITATION: Mbaga-Katekyeza V. Katekyeza, 2026 ONSC 3494

COURT FILE NO.

COURT FILE NO.: FS-22-00029326-0001

DATE

DATE: 20260615

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Muzoora Jerome Katekyeza, Applicant/ Moving Party

AND:

Leila Mbaga Mbaga Katekyeza, Respondent/ Responding Party

BEFORE: M. Kraft, J.

COUNSEL: Mercedes Ibghi, for the Applicant/ Moving Party

David Tobin, for the Respondent/ Responding Party

HEARD: June 11, 2026

ENDORSEMENT

Nature of the Motion

1The respondent, Leila Mbaga‑Katekyeza (“Leila”), brings this motion to stay the applicant Muzoora Jerome Katekyeza’s (“Jerome”) Motion to Change the Final Order of Vella J. dated May 14, 2025 (the “Final Vella Order”). She also seeks security for costs in the amount of $75,000.

2The Final Vella Order followed an uncontested trial after Jerome’s Answer was struck with respect to the parties’ financial issues. The orders relevant to this motion provide that:

a. Jerome shall pay retroactive and ongoing table child support for the period June 5, 2017, to November 30, 2024, in the amount of $448,000;

b. Jerome shall pay s. 7 expenses of $24,274.36;

c. Costs are fixed at $25,000; and

d. Effective December 1, 2024, Jerome shall pay table child support for the children, N., M., and J., in the amount of $4,841 per month, based on an imputed income of $400,000, subject to review when the youngest child enters university.

3Jerome has not complied with the Final Vella Order. Leila submits that his Motion to Change should be stayed pending compliance, including payment of $25,000 in costs, $448,000 in retroactive child support, and $24,274.36 in retroactive s. 7 expenses. She further seeks security for costs in the amount of $75,000.

Procedure to address the motion under Rule 25(19) and the Motion to Change

4At the outset, I raised a concern that Jerome’s Motion to Change addresses both the period preceding the Final Vella Order (2022–2025) and the period thereafter. A motion to change requires proof of a material change arising after the order. I, therefore, questioned why relief relating to the pre‑order period was advanced in this proceeding.

5Jerome submits that, although he intends to bring a motion under r. 25(19)(a) alleging the Final Vella Order was obtained by fraud, he has not yet done so. Instead, he commenced this Motion to Change, which is an entirely new proceeding, and seeks to have the fraud-based challenge determined within it, relying on the objectives of efficiency and proportionality in the Family Law Rules.

6The difficulty arises because Jerome seeks both to vary the Final Vella Order and to challenge the basis upon which it was made. This is not a de novo proceeding. Courts have, however, adopted a flexible approach where parties combine a Motion to Change with additional claims not captured by the prior order, notwithstanding non-compliance with r. 8(2.1).

7In Cosentino v. Cosentino, 2017 ONSC 6031, the court permitted unadjudicated claims to proceed together with a Motion to Change, emphasizing the directive in r. 2(2) to deal with cases justly and to address as many issues as possible on the same occasion.

8Similarly, in Linett v. Linett (2006), 2006 CanLII 12956 (ON CA), 27 R.F.L. (6th) 247 (Ont. C.A.), the Court of Appeal confirmed that non-compliance with the Rules may constitute a curable irregularity and does not render a proceeding a nullity.

9In Collins v. Colling, 2017 ONSC 2232, the court allowed a party to combine a request to vary child support with new claims in a single proceeding, relying on the flexibility contemplated by r. 8(2.1).

10Here, Jerome seeks the inverse: to advance a r. 25(19)(a) challenge within a Motion to Change. While there is no equivalent exception in Rule 15, as there is in r.8(2.1), I think it is just in these circumstances to adopt a flexible approach, relying on Rule 2(2), which directs that cases be dealt with “justly” and, in particular, that “as many aspects of the case as possible” be addressed on the same occasion.

11Accordingly, Jerome’s motion to change the Final Vella Order under r.25(19)(a) shall be heard within this Motion to Change.

Conclusion

12I have dismissed Leila’s motion to stay Jerome’s Motion to Change the Final Vella Order and ordered Jerome to pay security for costs in the sum of $30,000, for the reasons set out below.

Factual and Procedural Background

13The parties started cohabiting in August 2003. They were married on May 30, 2009 and separated on August 30, 2018.

14There are three children of the marriage, N., age 21, M., age 19, and J., age 18.

15On April 11, 2022, Leila issued an Application in this court. Jerome filed an Answer in September 2022.

16On November 6, 2022, Leila and the children were grocery shopping and returned home to find that Jerome had locked them out of the house and removed the furniture from the home. Leila and the children were forced to reside with a neighbour.

17On November 10, 2022, Leila brought an urgent motion for exclusive possession of the matrimonial home, which was granted by Shore, J. Jerome was also prohibited to attend within 500 meters of the home. Justice Shore also ordered Jerome to provide Leila with specific income disclosure.

18On January 11, 2023 and February 6, 2023, the parties attended two case conferences before Sugunasiri, J. On January 11, 2023, on consent, Jerome was ordered to pay Leila child support in the sum of $2,249 a month starting November 2022.

19On February 6, 2023, Sugunasiri, J. ordered both parties to produce financial disclosure to each other within 30 days.

20Leila brought a motion to compel Jerome to make financial disclosure because he did not comply with previous orders. On May 16, 2023. Kristjanson, J. ordered Jerome to provide the disclosure providing him with one last chance to do so. In her Endorsement, Kristjanson, J. found that Jerome had been “evasive and misleading in his disclosure to date.” Jerome was also ordered to pay costs of the motion in the sum of $8,785.

21When Jerome failed to comply with Kristjanson, J.’s order, Leila brought a motion to strike his Answer for his breach of the orders of Shore, J., dated November 10, 2022, Sugunasiri, J., dated January 11, 2023, Sugunasiri, J., dated February 6, 2023, and Kristjanson, J. dated May 16, 2023.

22On July 6, 2023, Sharma, J. struck Jerome’s Answer with respect to the financial issues and granted Leila leave to amend her Application to seek a vesting order. Justice Sharma also ordered Jerome to pay costs of the motion in the sum of $4,715. In addition, Sharma, J. ordered TD Bank, TD Waterhouse, TD Direct Investing, RBC, Scotiabank and Simplii Financial to provide a list of all of Jerome’s accounts and accounts held by Camara Geomatic Technologies Inc. (a company he owns) for the period January 2015 to date.

23Leila served and filed her amended Application on October 17, 2023 to include a claim for a vesting order. Jerome never filed an amended Answer.

24On October 27, 2023, the parties had a Settlement Conference before Faieta, J., at which they settled their parenting issues by way of a consent order.

25On July 10, 2024, the parties attended a TMC before Diamond, J. Jerome attended that conference. Leila was granted leave to proceed with an uncontested trial with respect to the outstanding financial issues. The order also provides that if Jerome obtains an order setting aside the Sharma J. order striking his answer, then the parties shall complete questioning within 60 days thereafter, and, schedule a combined SC/TMC before Diamond, J. Jerome never took steps to set aside the striking order.

26The hearing of the uncontested trial started on December 5, 2024 before Vella, J. and continued February 11, 2025. Jerome attended the uncontested trial with an agent. He was served with Leila’s trial affidavit.

27On May 14, 2025, Vella, J. delivered her reasons and Final Order.

28Jerome appealed the Final Vella Order. Leila moved to quash the appeal. On January 28, 2026, Justices Miller, Thorburn, and Monahan of the Court of Appeal declined to exercise their discretion to hear the appeal due to Jerome’s non-compliance with the Final Vella Order and quashed it. Jerome was ordered to pay costs of $5,000. The merits of the appeal were not addressed.

29On October 10, 2025, Jerome brought a Motion to Change the Final Vella Order, seeking to vary:

a. The retroactive and post-application child support award of $448,000 for the period June 5, 2017, to November 30, 2024, to reflect his actual income and the children’s actual living arrangements. He asserts no support is payable for N. or M. from separation onward, and that support for J. is only payable from November 1, 2022 to September 30, 2024;

b. The ongoing monthly child support of $4,841 commencing December 1, 2024, which was based on an imputed income of $400,000, to reflect the parties’ actual incomes and the children’s actual living arrangements; and

c. His 68% contribution to the children’s s. 7 expenses from December 1, 2024, to reflect the parties’ proportionate incomes.

30Jerome’s Motion to Change is based primarily on his assertion that he was not in contact with the children until after the Final Vella Order, when he learned that Leila misrepresented their living arrangements in her trial affidavit. He claims that the children were not residing with her from November 1, 2022 onward. The Final Vella Order reflects the following findings regarding residence:

a. In 2022, the children resided with Leila full-time from January 1 to September 1, 2022; M. and J. continued full-time from September 1 to December 31, 2022, while N. lived in residence in Kingston;

b. In 2023, the children resided with Leila full-time from January 1 to December 31, 2023, with N. residing with her from May 1 to August 31, 2023; and

c. In 2024, J. resided with Leila for 11 months; M. resided with her from January 1 to August 31, 2024, before moving to Montreal; and N. resided with her from May 1 to August 31, 2024.

31Jerome deposes that, based on the children’s actual living arrangements, he owes no table child support for N. from 2022 onward, none for M. from September 2022 onward, and only support for J. from November 2022 to September 2024. He acknowledges some s. 7 expenses remain payable for all three children.

32Jerome also relies on affidavits from N. and M. regarding their living arrangements. These affidavits were sworn in support of his appeal as fresh evidence, not for this Motion to Change. The appeal, however, was not heard on its merits.

33Jerome further submits that he received no credit for paying household expenses until November 2022, or for child support payments of $2,249 per month made pursuant to Sugunasiri J.’s order. It is not disputed that he paid this amount from November 2022 to July 2025.

34As an additional basis for his motion, Jerome asserts that since summer 2025, M. and N. have resided with him, while J. resides with his girlfriend. He argues these constitute a material change in circumstances warranting variation of his ongoing child support obligations. He also claims to have borne all of the children’s expenses, including therapy, post-secondary tuition, and living costs.

35Jerome ceased paying child support in July 2025. He recently paid $25,100 to the FRO, which he says was intended to satisfy the costs ordered in the Final Vella Order. However, as the FRO does not appear to be enforcing the costs provision, Leila maintains that the payment should be applied to the retroactive child support. The Final Vella Order clearly states that the costs should be enforced by the FRO. For some unknown reason, the FRO is not enforcing the costs. I am satisfied that when Jerome made the payment of $25,100, he intended to be applied toward the costs. I find that this payment was made in satisfaction of the costs of the uncontested trial.

Should Jerome’s Motion to Change be stayed?

36Jerome seeks to vary his child support obligations under the Final Vella Order effective January 1, 2025, on the basis that the children no longer reside with Leila.

37Leila submits that the motion should be stayed due to Jerome’s ongoing non-compliance with the Final Vella Order. She points to arrears of $448,000 in retroactive child support, $24,274 in s. 7 expenses, and $25,000 in costs. She argues that Jerome has engaged in persistent non-compliance and should not be permitted to pursue further relief while in substantial default.

The Law on a motion to stay

38Section 106 of the Courts of Justice Act permits the court to stay a proceeding on such terms as are just.

39Rule 1(8) of the Family Law Rules authorizes the court to respond to a party’s failure to comply with an order, including by staying or postponing a step in the proceeding.

40The applicable framework is set out in Ferguson v. Charlton, 2008 ONCJ 1, at para. 64. The court must:

a. determine whether there has been a triggering event meaning non-compliance with a court order;

b. if so, decide whether to exercise its discretion in favour of the defaulting party; and

c. determine the appropriate remedy.

41The onus rests on the non-complying party to justify the exercise of discretion in their favour (Pearce v. Kisson, 2019 ONSC 4389, at para. 16).

42The overriding consideration is whether the result is fair and appropriate in the circumstances (Teixeira v. Teixeira, 2022 ONSC 6133, at para. 29).

The parties’ positions

43Leila relies on authorities confirming that a party cannot rely on an anticipated variation as justification for non-compliance. In Hill v. Gregory, 2018 ONSC 6847, applying Myers v. Myers, 2014 ONSC 1804, the court struck a motion to change where the payor was in deliberate and substantial breach of the order he sought to vary.

44She further submits that Jerome is effectively attempting to relitigate the Final Vella Order after his appeal was quashed for non-compliance and should only be permitted to proceed upon satisfying his outstanding obligations and posting security for costs.

45Leila also relies on Pontigon v. Pontigon, 2022 ONSC 6268, where the court stayed a motion to change pending payment of outstanding financial obligations.

46This case is distinguishable. Unlike Pontigon, Jerome has satisfied all costs orders made prior to and including the appeal and has recently paid $25,100 intended to address the costs awarded by Vella J., consistent with the principle that a litigant must satisfy costs obligations before seeking further relief.

47As noted in Andrews v. Andrews, 2000 CanLII 22552 (ON SC), at para. 14, the court must carefully assess the parties’ conduct. Non-compliance does not inevitably result in a stay; the court must consider whether the breach arises from inability or from disregard for the process.

Analysis

48Jerome has paid a total of $31,031.11 toward the Final Vella Order, including $25,100 paid on May 22, 2026. Although Leila submits this amount should be applied to support, I accept that it was intended to satisfy the costs award, consistent with the terms of the Final Vella Order even though FRO is not enforcing it, particularly, since the Order requires that it do so.

49Jerome acknowledges that he remains in breach of the support provisions. He, nonetheless, submits that a stay is unwarranted because all costs have been paid, the Final Vella Order is alleged to have been obtained on a flawed factual foundation, and there has been a material change in the children’s circumstances.

50Leila maintains that Jerome’s non-compliance is deliberate and that permitting the motion to proceed would undermine the authority of the court.

51Jerome, in turn, submits that a stay would cause significant prejudice, including to the children, and that his motion is neither abusive nor vexatious.

52I have considered the evidence and in applying the Ferguson framework, I make the findings below:

Triggering event:

a. Jerome is plainly in breach of the Final Vella Order. He has not paid the substantial retroactive child support or the full amount of s. 7 expenses, and he ceased paying ongoing child support.

Exercise of discretion:

b. Notwithstanding Jerome’s non-compliance, I decline to stay the Motion to Change insofar as it relates to ongoing child support. While the arrears are significant and remain unpaid, the record does not support the finding that Jerome’s breach is motivated by bad faith or a willful disregard of the court’s authority. He pursued appellate relief, which was not determined on its merits, and has since continued to advance his position through proper procedural channels.

c. Importantly, it is undisputed that he is currently bearing the children’s primary financial burden, including post-secondary and related expenses. On the evidence before me, there is a credible basis to conclude that the children’s living arrangements have materially changed since the Final Vella Order. If established, those changes may directly affect his ongoing support obligations. In these circumstances, denying him access to a determination on the merits - at least with respect to prospective support - would risk an outcome that is not proportionate or fair. The integrity of the process is not undermined by permitting that issue to proceed, particularly where the alleged change post-dates the Final Vella Order and engages the current support framework.

d. While Jerome has not reduced the arrears, his conduct does not demonstrate bad faith. He has attempted to challenge the order through the appellate process, albeit unsuccessfully, and continues to bear the children’s day-to-day expenses, including tuition and therapy. It is uncontroverted that the children are financially reliant on him. On the record before me, there is evidence of a material change in circumstances since the Final Vella Order that warrants determination on its merits.

Prejudice:

e. I am not satisfied that permitting the motion to proceed will result in prejudice to Leila. She received the matrimonial home in satisfaction of her equalization and spousal support claims and continued to receive child support into 2025. It is not disputed that she is no longer providing financial support to the children. If Jerome’s evidence regarding the children’s living arrangements is borne out, her entitlement to ongoing support is legitimately in issue.

53Balancing all considerations, I decline to stay the Motion to Change insofar as it relates to ongoing child support. In my view, the question of whether there has been a material change in circumstances since the Final Vella Order is one which should be properly determined on its merits.

Issue Two: Should security for costs be ordered?

54Leila seeks security for costs in the amount of $75,000.

55Rule 25(20) of the Family Law Rules permits the court to order security for costs where it is just to do so, based on the enumerated grounds.

56The applicable framework, set out in Izyuk v. Bilousov, 2015 ONSC 3684, para. 40 and applied in Unoh v. Agboola, 2023 ONSC 5751, at para. 36, requires the court to determine:

a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.

b. If the onus is met, the court has discretion to grant or refuse an order for security.

c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v Clark 2014 ONCA 175

d. The order must be “just” and be based on one or more of the factors listed in subrule 24(13). Hodgins v Buddhu [2013] O.J. No. 1261 (OCJ).

57Security for costs must not operate to prevent a matter from being determined on its merits. The assessment is holistic and grounded in fairness.

Analysis

58Jerome does not fall within the enumerated grounds in Rule 25(20). He resides in Ontario, is not a corporation, and I accept that he has satisfied the costs orders made against him.

59However, he remains in substantial non-compliance with the financial provisions of the Final Vella Order, including unpaid retroactive child support of $448,000, outstanding s. 7 expenses, and the cessation of ongoing support payments.

60Considering the record as a whole:

a. Jerome does not meet the express criteria under Rule 25(20);

b. He deposes that a significant security order would impair his ability to support the children;

c. There remain substantial outstanding financial obligations under the Final Vella Order;

d. Jerome’s prior breaches of orders resulted in an uncontested trial and the Final Vella Order being made;

e. The Motion to Change raises significant issues requiring a substantive response; and

f. The procedural history—including the quashed appeal and anticipated r. 25(19)(a) motion—points to ongoing litigation risk and expense.

61In these circumstances, it is just to order security for costs. Leila has incurred substantial expense in obtaining and defending the Final Vella Order, including having to bring a motion to quash the appeal of the order. She is entitled to some protection against further costs exposure.

62At the same time, the quantum must remain proportionate and must not impede Jerome’s ability to advance claims that warrant determination, particularly those relating to ongoing support obligations.

63Balancing these considerations, I fix security for costs in the amount of $30,000. This amount reflects a measured and proportionate response to the risks identified. The funds shall be held in trust by Jerome’s counsel in an interest-bearing account, not to be released except by further order of the court or written agreement of the parties.

ORDER

64This court makes the following order:

a. Leila’s motion to stay the within Motion to Change is hereby dismissed.

b. Jerome shall pay security for costs in the sum of $30,000 to be paid into his counsel’s trust account in an interest-bearing account, not to be released until further court order or agreement of the parties.

c. Upon Jerome’s payment of the security for costs referred to in (b) above, he may proceed with his Motion to Change.

d. Jerome’s motion to change the retroactive aspect of child support (both table and s.7 expenses) pursuant to rule 25(19)(a) may be brought within this Motion to Change proceeding.

e. An urgent conference shall be scheduled before the first available judge to determine the procedure of this Motion to Change, particularly, whether there shall be a r. 25(19)(a) motion first or whether both issues shall be addressed in one hearing.

f. The parties are encouraged to resolve the issues of costs of this motion to stay and security for costs. There was divided success. If they are unable to do so, they shall make written submissions according to the following timetable:

i. The applicant shall serve and file his written costs submissions within 10 days, not longer than 3 pages, not including Offers to Settle or Bills of Costs;

ii. The respondent shall serve and file her written costs submission within 7 days of being served with the applicant’s costs submissions, not longer than 3 pages, not including Offers to Settle or Bills of Costs; and

iii. The applicant shall serve and file reply costs submissions of not more than 1 page within 5 days of being served with the respondent’s costs submissions.

iv. Cost submissions shall be filed with the court and provided to my judicial assistant by email to Paral.Mehta@ontario.ca.