



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 appellants 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 respondents 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 appellants 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 judges reasons are inadequate and do not
    permit meaningful appellate review.

[9]

In our view, the appellants 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 judges 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 courts 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, t
he 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


