



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 Misheals 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. Misheals 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. Misheals 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. Misheals 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    made in 2013 in an uncontested hearing in which his arrears were rescinded does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. Misheals appeal was
    dismissed, and does not affect the finality of the courts 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. Misheals 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 all

support
    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. Okels absence, Gray J. in his order of June 21, 2013,
    confirmed the Nova Scotia orders and granted Mr. Misheals 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. Misheals 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 courts 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. Okels motion as a motion to extend
    time to appeal Justice Grays 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. Misheals affidavit
    sworn November 20, 2013, setting out his position in detail with respect to
    whether the order of Gray J. should stand.  Ms. Okels 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. Misheals
    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. Misheals 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.


