



COURT OF APPEAL FOR ONTARIO

CITATION: Mwanri v. Mwanri, 2015 ONCA 843

DATE: 20151204

DOCKET: C60177

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Ernest Josiah Mwanri

Appellant (Respondent)

and

Irene Elias Mwanri

Respondent (Applicant)

Miguna Miguna, as agent for the appellant

Cynthia Mancia, for the respondent

Mark N. Demeda, for the Office of the Childrens Lawyer

Heard: September 3, 2015

On appeal from the order of Justice David Price of the
    Superior Court of Justice, dated February 27, 2015.

Cronk J.A.:

I.        Introduction

[1]

The parties were married in 1996 and separated in 2009. They have two
    children, now 14 and 19 years of age.  By court order dated December 10, 2010,
    the appellant father was granted sole custody and primary residence of the
    parties son, the eldest child.  The son, who is now in University, has lived
    with the father ever since.  By the same court order, the respondent mother was
    granted sole custody and primary residence of the parties daughter, their youngest
    child.  On July 11, 2014, the daughter refused to return to her mothers home after
    a summer access visit with her father.  Since then, she has lived with the father.

[2]

The current custody and access arrangements for the children are not at
    issue on this appeal.  The main issues in contention concern child support for
    the daughter, spousal support, and an unpaid equalization payment owed by the
    father to the mother.

II.       Background in Brief

[3]

On October 23, 2013, following a trial, Seppi J. of the Superior Court
    of Justice granted the parties a divorce.  She also ordered that the father: i)
    make an equalization payment to the mother in the amount of $51,437.50, payable
    in two instalments: $25,718.75 within 31 days from the date of the order and
    the balance by no later than May 31, 2014; ii) pay $1,000 per month in spousal
    support to the mother, commencing January 1, 2012; iii) pay $704 per month in
    child support to the mother for the daughter; and iv) contribute to the
    extraordinary educational expenses of both children on a
pro rata
basis.  By subsequent order dated January 23, 2014, Seppi J. also ordered the
    father to pay $38,000 in costs to the mother (collectively, Justice Seppis Order).

[4]

Several key events occurred after Justice Seppis Order.

[5]

First, once the daughter began to live with him in mid-July 2014, the
    father moved in the Superior Court to change the existing custody, access and
    support arrangements regarding her.  By notice of motion dated July 15, 2014,
    he sought a temporary custody order with respect to the daughter, together with
    specified access rights in favour of the mother; a temporary order terminating
    his existing child support obligation towards the daughter, effective July 11,
    2014; and an order requiring the mother to disclose the details of her
    employment.  He claimed no other relief regarding child or spousal support in
    his notice of motion.

[6]

The following month, in August 2014, the father filed an assignment in
    bankruptcy under the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c.
    B-3, (the 
BIA
).  At the time of his bankruptcy filing, his spousal
    and child support payments were current.  However, he had not paid any part of the
    equalization payment or the costs awarded to the mother under Justice Seppis Order.

[7]

For various reasons, the fathers motion was not heard in the fall of
    2014.  On December 5, 2014, the mother brought her own motion in the Superior
    Court, seeking orders for lump sum and continuing periodic spousal support,
    setting a review date for spousal support, and fixing the quantum of child
    support to be paid by her for the daughter at $101 per month based on the
    mothers declared annual income of $15,249.  By the time of the mothers motion,
    the daughter had been residing with her father for almost six months.

[8]

By operation of s. 168.1 of the
BIA
, the father was automatically
    discharged from bankruptcy on May 15, 2015, about two and one-half months after
    the motions judges order.

III.      Motions Judges Decision

[9]

The parties twin motions were heard together by Price J. of the
    Superior Court on February 27, 2015.  There was no dispute regarding temporary
    custody of the daughter.  The motions judge therefore granted continuing temporary
    sole custody of the daughter to the father and made an access order in favour
    of the mother.

[10]

The
    motions judge further directed:

The parenting/access schedule in this Order shall be monitored
    by the Office of the Childrens Lawyer and both of the parents shall cooperate
    with the OCLs counsel and follow his direction as to the interpretation of
    this Order.

The propriety of this direction is at issue on this
    appeal.

[11]

The
    motions judge also made several rulings regarding child and spousal support. 
    In particular, the motions judge:

(1)

ordered
    the father to forthwith make a lump sum spousal support payment of $51,437 to
    the mother;

(2)

ordered
    the father to make continuing periodic spousal support payments of $1,000 per
    month to the mother, in accordance with Justice Seppis Order;

(3)

granted a
    charging order, in respect of the lump sum and periodic spousal support to be
    paid to the mother, against one of the fathers bank accounts, two of his
    registered retirement savings plans (R.R.S.P.s), and specified pension assets;

(4)

ordered
    that either party could seek a court review of the fathers periodic spousal
    support obligations after August 31, 2017, on certain conditions;

(5)

terminated
    the fathers child support obligation for the daughter, effective from the date
    of his order; and

(6)

adjourned
    the balance of the issues raised in the parties motions, to be heard by him on
    May 1, 2015.

IV.     Issues

[12]

In
    his factum, the father challenges almost every aspect of the motions judges
    child and spousal support rulings.  As ultimately argued, the issues may be
    framed as follows:

(1)

did the motions judges conduct of the hearing give rise to a reasonable
    apprehension of bias?

(2)

did the motions judge err in his child support ruling:

i)

by failing to terminate the fathers child support obligation for the daughter
    retroactively, from July 11, 2014 onwards, and by failing to account for the
    fathers child support payments to the mother during the eight months prior to
    the hearing, when the daughter was residing with the father; and

ii)

by failing to order that the mother pay child support for and contribute
    to the extraordinary expenses of the daughter?

(3)

did the motions judge err in his spousal support ruling:

i)

by ordering the father to pay lump sum support to the mother in an
    amount equal to the outstanding equalization payment under Justice Seppis
    Order; and

ii)

by directing that the fathers spousal support obligations be subject to
    a charging order over some of the fathers assets?

(4)

did the motions judge err by ordering the parties to follow the
    directions of counsel for the Office of the Childrens Lawyer (the OCL)
    regarding interpretation of the motions judges order?

V.      Discussion

(1)

Reasonable Apprehension of Bias Claim

[13]

The
    father argues that the motions judges conduct of the hearing created a
    reasonable apprehension of bias because the motions judge failed to accord the
    father procedural fairness and fundamental justice.  The father submits that,
    on this basis alone, the motions judges child and spousal support rulings that
    are adverse to the father cannot stand.

[14]

It
    is unnecessary to review the fathers numerous complaints in support of his
    bias claim in detail.  In general, he maintains that the motions judge failed
    to act impartially, instead conducting himself as a partisan advocate for the
    mother; that he failed to afford a fair opportunity to the father to be heard;
    and that he made findings adverse to the father that were not supported by the
    evidence.

[15]

I
    would reject the fathers bias claim.

[16]

As
    the Supreme Court explained in
Wewaykum Indian Band v. Canada
, 2003
    SCC 45, [2003] 2 S.C.R. 259, at para. 60, the test for the demonstration of a
    reasonable apprehension of bias is as follows:

What would an informed person viewing the matter realistically
    and practically  and having thought the matter through  conclude.  Would he
    think that it is more likely than not that [the decision-maker], whether
    consciously or unconsciously, would not decide fairly.

[17]

In
Martin v. Sansome
, 2014 ONCA 14, 118 O.R. (3d) 522, at para. 32, this
    court noted, citing
Wewaykum
, at para. 76: There is a strong
    presumption of judicial impartiality.  The threshold is high for finding an
    apprehension of bias.

[18]

In
Chippewas of Mnjikaning First Nation v. Ontario
, 2010 ONCA 47, 265
    O.A.C. 247, at para. 230, leave to appeal to S.C.C. refused, [2010] S.C.C.A.
    No. 91, this court summarized the framework for reviewing a reasonable
    apprehension of bias claim based on a trial judges interventions at trial:

A determination of whether a trial judges interventions give
    rise to a reasonable apprehension of unfairness is a fact-specific inquiry and
    must be assessed in relation to the facts and circumstances of a particular
    trial.  The test is an objective one.  Thus, the trial record must be assessed
    in its totality and the interventions complained of must be evaluated
    cumulatively rather than as isolated occurrences, from the perspective of a
    reasonable observer throughout the trial.

[19]

I
    have carefully reviewed the transcript of the hearing in this case, with regard,
    especially, to the number and nature of the motions judges interventions and his
    comments throughout to all counsel.  Based on the transcript, there is no doubt
    that the motions judge took an active role in the hearing.  However, the
    transcript reveals nothing that rises to the high level required to meet the
    test for a reasonable apprehension of bias.

[20]

The
    motions judges interventions in this case did not occur solely during the
    fathers counsels submissions.  The motions judge intervened during the oral
    arguments of all counsel, making multiple requests for their assistance
    regarding his concerns about the matters at issue.  As I read his comments, his
    interventions were designed to focus counsels arguments on the central matters
    in dispute, to clarify the parties positions and that of the OCL on the
    issues, and to avoid or minimize submissions on peripheral issues.

[21]

Moreover,
    contrary to the fathers submission, the transcript reveals that, despite his
    sometimes pointed exchanges with the fathers counsel, the motions judge was
    alert and attentive to the fathers arguments.  For example, at one point
    during an exchange with the fathers counsel, he indicated expressly that he
    was very interested in counsels submissions.  At another point, he stated
    that he would try very carefully to understand the fathers submissions.  The
    father was afforded a full opportunity to address the various issues on the
    motions, as well as additional issues raised by the father himself, for the
    first time, during submissions before the motions judge.

[22]

In
    my opinion, the transcript belies the fathers claim that the motions judge had
    a closed mind regarding the fathers arguments and that he failed to act
    impartially.  The fathers disagreement with the motions judges rulings on
    child and spousal support affords no foundation for a reasonable apprehension
    of bias claim.  Similarly, the fact that the motions judge rejected much, but
    not all, of the relief sought by the father does not reflect bias.

(2)

Child Support Issues

(i)

Termination of the Fathers Child Support Obligation

[23]

The
    father argues that the motions judge erred by failing to retroactively
    terminate his child support obligation for the daughter, effective July 11,
    2014, when she began to live with the father.  He further argues that the
    motions judge erred by failing to credit him for his child support payments for
    the daughter during the eight months prior to the date of the hearing.

[24]

I
    would not give effect to these arguments.

[25]

The
    motions judge addressed the fathers requests for a retroactive termination of
    his child support obligation and for a corresponding order requiring the mother
    to pay retroactive child support directly:

There is evidence that [the father] has influenced [the daughter]
    in her decision not to abide by the orders for her residence made by Seppi J.
    and by Van Melle J. on August 11, 2014 both from [the mother] and from the
    interviews the OCL has had with [the daughter].  For this reason and in the
    circumstances which I find amount to a failure to comply fully with the existing
    court orders, if not outright contempt of them, I decline to make any
    retroactive termination of [the fathers] child support obligation, [or] to
    impose a retroactive child support obligation on [the mother].

[26]

The
    father submits that this justification for the denial of retroactive
    termination of his child support obligation is unsupportable because it rests
    on two palpable and overriding factual errors: that the father had influenced the
    daughter in her decision to change her residence; and that the father was in
    contempt of existing court orders.

[27]

I
    disagree.

[28]

First,
    there was evidence before the motions judge of attempts by the father to
    influence or encourage the daughter to live with him, notwithstanding the
    custody arrangements in favour of the mother provided for under various
    pre-July 2014 court orders.

[29]

On
    July 30, 2014, the mother moved for a court order compelling the return of the daughter
    to her care and custody.  In her affidavit of the same date, the mother
    deposed:

7.    My
    daughter has never told me that she wants to live with her father and that she does
    not want to live with me.

8.    The
    [father] is very persuasive and I believe that he has used emotional blackmail
    to persuade our daughter to express that she wants to live with him.  I so
    state as with our older child, the [father] did the same thing.

[30]

The
    mother made similar statements in a second affidavit sworn on August 20, 2014.

[31]

Thus,
    the mothers sworn evidence supported the motions judges finding that the father
    influenced the daughters decision to change her place of residence.

[32]

The
    motions judges reference to the OCLs interviews with the daughter is a
    different matter.  The materials before the motions judge do not appear to have
    included a report or other evidence from the OCL.  To the extent that the
    motions judge treated submissions by the OCLs counsel regarding the outcome of
    OCL interviews with the daughter as evidence of attempts by the father to
    influence the daughter to disobey existing court orders regarding custody, the
    motions judge erred.  Submissions by counsel are not evidence.  They are simply
    submissions and nothing more.

[33]

That
    said, nothing turns on this error.  As I have said, the mothers affidavit
    evidence, described above, anchored the motions judges comments regarding
    efforts by the father to influence the daughter in her decision-making.

[34]

In
    addition, in my view, there can be no serious suggestion that the motions judge
    erred by indicating that the father had failed to comply fully with existing
    court orders.  The mothers uncontradicted evidence was that neither the
    equalization payment nor the costs awarded in her favour under Justice Seppis
    Order had been paid.  The father did not suggest otherwise before the motions
    judge or at the appeal hearing.  That the mother had assigned her right to
    enforce the costs award to Legal Aid Ontario does not alter the fact that the
    costs award had not been paid at the time of the hearing before the motions
    judge.

[35]

Moreover,
    contrary to the fathers assertion before this court, the motions judge did not
    find the father in contempt.  The motions judges reference to outright
    contempt in connection with the fathers conduct was nothing more than a
    description, albeit a strong one, of his concern about the fathers failure to
    honour his obligations under Justice Seppis Order.  His concern was not
    misplaced.

[36]

The
    motions judge provided clear reasons for refusing to grant a retroactive
    termination of the fathers child support obligation and, implicitly, for his associated
    refusal to credit the father for his child support payments for the daughter in
    the eight months preceding the hearing.  No palpable and overriding factual
    error has been demonstrated in respect of these discretionary refusals. 
    Accordingly, there is no basis for appellate interference with the motions
    judges rulings on these issues.

(ii)

The Mothers Child Support Obligations

[37]

The
    father submits, first, that the motions judge erred by failing to order that
    the mother pay prospective child support for the daughter and by treating the
    mothers annual income for support purposes as $2,108.  Second, the father
    maintains that the motions judge erred by failing to order that the mother contribute
    to the daughters extraordinary expenses.

[38]

I
    agree with the first submission and disagree with the second.

[39]

Both
    the mothers notice of motion and her counsels submissions before the motions
    judge expressly contemplated that the mother should be paying child support for
    the daughter in the sum of $101 per month, based on an annual income in 2013 of
    $15,249 (including spousal support).  To the extent, therefore, that the motions
    judge assessed the mothers ability to pay child support based on an annual
    income of $2,108 (the mothers income at the time of Justice Seppis Order), the
    motions judge erred.

[40]

The
    motions judges assessment should have proceeded on the basis of the mothers
    admitted annual income, as at the date of the motions, in the sum of $15,249. 
    The motions judge erred by failing to order $101.68 per month in child support
    for the daughter, given the mothers concession that she should pay monthly
    child support in that amount in accordance with the
Federal Child Support Guidelines
,
    SOR/97175 (the Guidelines).  The motions judges reasons contain no
    explanation for his failure to impose a prospective child support obligation on
    the mother.

[41]

That
    is not to say, however, that the motions judge erred by refusing to order that
    the mother pay child support for the daughter on a retroactive basis.  He
    declined to impose a retroactive child support obligation on the mother for the
    same reasons that he declined to retroactively terminate the fathers child
    support obligation, outlined above.  This was his call to make.

[42]

In
    the circumstances, I would vary the motions judges order to provide that the
    mother pay child support for the daughter in the amount of $101.68 per month,
    commencing February 27, 2015 (the date of the motions judges order).

[43]

I
    reach a different conclusion regarding the motions judges failure to order that
    the mother contribute to the daughters extraordinary expenses.

[44]

Justice
    Seppis Order directs that both parents contribute
pro rata
to all
    extraordinary expenses of
both
children, incurred for their education,
    on the basis set out in that order.  No subsequent court order appears to have
    altered this direction.  Accordingly, the mother is already obliged to
    contribute, on a
pro rata
basis, to the extraordinary
    education-related expenses of the children.

[45]

Although
    the father did not seek an extraordinary expense order under the Guidelines in
    his July 2014 notice of motion, the motions judges reasons confirm that the matter
    was argued before him.  However, the father has pointed to no evidence of non-education-related
    extraordinary expenses for the daughter led before the motions judge. 
    Accordingly, on the record before the motions judge, there was no basis on
    which to order any additional contribution by the mother to extraordinary
    expenses.

[46]

In
    these circumstances, the motions judges refusal to order that the mother
    contribute to any additional, extraordinary expenses for the daughter cannot be
    faulted.  Should such additional expenses arise while the daughter is residing
    with the father, there is nothing to prevent him from moving, on proper
    materials and proper notice, for the appropriate order in the normal course.

(3)

Spousal Support Issues

[47]

The
    father submits that the motions judge erred by ordering that he pay lump sum
    spousal support to the mother and that his lump sum and periodic spousal
    support obligations be subject to a charging order under s. 9(1)(b) of the
Family
    Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
).  I will address these
    submissions in turn.

(i)      Lump Sum Spousal Support Award

[48]

The
    father attacks the motions judges lump sum spousal support award on several
    grounds.  First, he argues that the motions judge erred by finding that the
    fathers bankruptcy constituted a material change in circumstances entitling
    the mother to reconsideration of her need for support from the father and the
    appropriate quantum of support, if awarded.

[49]

Second,
    the father contends that the motions judge erred in awarding lump sum spousal
    support to the mother by failing to adhere to the governing principles
    regarding lump sum support enunciated by this court in
Davis v. Crawford
,
    2011 ONCA 294, 106 O.R. (3d) 221 and related authorities.

[50]

Third,
    the father maintains that the lump sum award, in an amount equal to the sum of
    his outstanding equalization obligation, improperly circumvents the
BIA
bankruptcy regime, under which the mothers entitlement to an unpaid
    equalization payment is a provable claim in the fathers bankruptcy.  The
    effect of the motions judges lump sum award, the father says, is to
    impermissibly prioritize the mothers claim for enforcement of the fathers equalization
    debt over the claims of other unsecured creditors in the fathers bankruptcy.

(a)

Preliminary
    Comments

[51]

At
    the outset, I acknowledge that the motions judges spousal support order
    attracts considerable deference from this court.  Absent an error in principle,
    a significant misapprehension of the evidence, or unless the award is clearly
    wrong, this court should not interfere with the motions judges spousal support
    ruling:
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para. 11;
Crawford
,
    at para. 77.

[52]

The
    effect of the motions judges spousal support ruling was to award lump sum
    spousal support to the mother in the same amount as the equalization payment
    provided for under Justice Seppis Order.  The motions judge also continued,
    without change, the fathers obligation to make periodic spousal support payments
    to the mother.

[53]

The
    issue, therefore, is whether the motions judges award of lump sum spousal
    support accords with the governing principles for lump sum support awards and the
    applicable considerations relating to the fathers pending bankruptcy proceeding. 
    For the reasons that follow, I conclude that it does not.  In my view, the
    motions judges lump sum spousal support analysis is tainted by several errors
    in principle.

(b)

Material
    Change in Circumstances

[54]

I
    begin with the motions judges finding of a material change in circumstances.

[55]

Contrary
    to the fathers submission, the motions judge considered circumstances other
    than the fathers bankruptcy in finding a material change in circumstances.  In
    his reasons, he stated:

I find that [the fathers] failure to pay the equalization
    payment ordered by Seppi J. on Oct. 23, 2013, and his bankruptcy on August 14,
    2014, which demonstrates that [the mother] is unlikely to receive this payment,
    amounting to $51,437, fully, if at all, and the change of [the daughters]
    residence and resulting change in child support amount to a material change in
    circumstances in that, if these circumstances had been foreseen by Seppi J.,
    she would likely have concluded that [the mothers] need for spousal support
    was greater.

[56]

I
    see no error in the motions judges finding of a material change in
    circumstances based on the factors described by him.  The factors identified by
    the motions judge, namely, the fathers failure to make the court-ordered
    equalization payment, the fact of his bankruptcy, the change in the daughters residence,
    and the resulting termination of the fathers child support payments to the
    mother, in combination, clearly established a material change in circumstances.
     There can be no doubt, in my view, that these factors, if proven at the time
    of the hearing before Seppi J., would have been directly relevant to her
    determination of spousal support.

[57]

Accordingly,
    based on the evidence before him, the motions judge was entitled to reconsider
    the mothers need for spousal support and to assess whether any change in the
    existing spousal support arrangements was necessary and appropriate in all the
    circumstances.  However, in so doing, the motions judge was obliged to take account
    of all relevant factors regarding such an award.  And it is here, in my view,
    that the motions judge fell into error.  I say this for the following reasons.

(c)

Approach
    on Motion to Change

[58]

At
    the time of the motions, the mother was already receiving periodic spousal
    support payments that were in good standing.  In these circumstances, the
    proper approach to the evaluation of the mothers change motion was to examine,
    first, whether the evidence established a change in the parties circumstances
    warranting an alteration in the existing periodic spousal support arrangements,
    given the mothers needs and the fathers ability to pay.

[59]

This
    analysis involves comparing the parties circumstances at the time of the
    motions with those at the time of Justice Seppis Order.  In other words, once
    it was accepted that a material change in circumstances had been demonstrated,
    the next step in the spousal support analysis was to inquire whether the periodic
    spousal support arrangements set out under Justice Seppis Order were adequate
    in light of the parties changed circumstances.  See for example,
Willick
    v. Willick
, [1994] 3 S.C.R. 670, at p. 688.

[60]

However,
    the reasons indicate that the motions judge essentially commenced, and ended,
    his spousal support analysis by focusing on the merits of a lump sum spousal
    support award, without addressing the adequacy of the existing periodic spousal
    support award under Justice Seppis Order.  Simply put, the motions judge
    failed to address the proper question once he had determined that there had
    been a material change in circumstances.  Further, in awarding lump sum spousal
    support, the motions judge also continued the fathers periodic spousal support
    obligation.  He provided no reasons for doing so.

[61]

The
    motions judges approach supports the conclusion that the underlying purpose of
    his lump sum spousal support award was merely to convert the mothers unpaid
    equalization payment into lump sum spousal support.  This approach was fatally
    flawed.  Addressing the appropriate initial inquiry  the adequacy of the
    existing periodic spousal support award  ensures that all the relevant
    circumstances are taken into account.  These include, for example, the parties
    current assets and income, the implications of the fathers release from
    certain liabilities on his eventual discharge from bankruptcy, his
    post-bankruptcy retention of property exempt from the
BIA
regime (
e.g.
his R.R.S.P.s and pension), and the mothers financial needs.  As a result of
    the motions judges flawed approach to the determination of spousal support,
    this review did not occur in this case.

(d)

Davis
    v. Crawford Considerations

[62]

There
    is a second, significant difficulty with the lump sum spousal support award in
    this case.

[63]

In
Crawford
, this court clarified the principles that govern lump sum
    support awards.  In so doing, the court stressed, at paras. 6365, that the
    payors ability to make a lump sum payment without undermining his or her future
    self-sufficiency is an important consideration in deciding whether to make an
    award of lump sum spousal support, including under s. 33(9) of the
FLA
. 
    That section provides, in part, that, [i]n determining the amount and
    duration, if any, of support for a spouse  in relation to need, the court
    shall consider, among other things:

(a)   the
    dependants and respondents current assets and means;

(b)   the
    assets and means that the dependant and respondent are likely to have in the
    future;



(d)   the respondents capacity to provide support.

[64]

The
Crawford
court went on to hold, at para. 66:

Most importantly, a court considering an award of lump sum
    spousal support must weigh the perceived advantages of making a lump sum award
    in the particular case against any presenting disadvantages of making such an
    order.

[65]

In
    this case, the motions judge identified four factors that, in his view,
    warranted a lump sum spousal support award in the mothers favour:

i)

the unlikelihood of the mother receiving the equalization payment to
    which she is entitled under Justice Seppis Order, together with the
    substantial impact on her of non-payment of the equalization award;

ii)

the termination of child support payments to the mother for the
    daughter;

iii)

the
    inequity arising from the potential release of the equalization debt on the
    fathers discharge from bankruptcy; and

iv)

the
    disparity in the parties incomes should the mother not benefit from receipt of
    the equalization payment that represented her share of the parties collective
    net family property.

[66]

The
    motions judge cannot be faulted for taking account of these factors. They were
    relevant considerations on the reassessment of the mothers need for spousal
    support.

[67]

But
    that does not end the matter.
Crawford
holds, at para. 70, that most
    spousal support orders will be in the form of periodic payments.  It is not
    apparent from the motions judges reasons whether he considered the specific
    purposes of lump sum spousal support in the circumstances of this case, the
    fathers ability to make a lump sum payment in light of his bankruptcy,
    financial resources and prospects for self-sufficiency, and if a lump sum
    award, as opposed to an award for increased periodic spousal support, was
    appropriate.  Further, as I read his reasons, the motions judge failed to weigh
    the perceived advantages of a lump sum spousal support award against the
    disadvantages of making such an award on the particular facts of this case. 
    His failure to do so is reversible error.

[68]

In
    these significant respects, the motions judges spousal support analysis failed
    to conform to the governing principles for lump sum awards identified in
Crawford
.

(e)

Bankruptcy
    Considerations

[69]

The
    errors described above were compounded in this case by the motions judges
    failure to fully come to grips with the implications of the fathers pending
    bankruptcy.

[70]

The
    mother sought an order from the motions judge converting her unpaid
    equalization payment and costs award into spousal support.  In her affidavit
    sworn on December 5, 2014, she asked for an order providing that payment of her
    outstanding equalization payment and costs award under Justice Seppis Order,
    together with interest, be made as spousal support and to be collected by the
    Family Responsibility Office.  During oral submissions before the motions
    judge, the mothers counsel confirmed her request that the outstanding
    equalization payment be paid to her either as a lump sum amount or as a
    monthly payment.

[71]

This
    request was triggered by the fathers bankruptcy and the fact that, upon
    discharge from bankruptcy, the father would retain various exempt assets, but
    be released from his equalization debt.  The mother asserted in her affidavit
    that: The [father] has declared bankruptcy for the sole purpose of denying me
    my legal rights and in defiance of [Justice Seppis Order].

[72]

However,
    the father was an undischarged bankrupt at the time of the mothers motion and
    the hearing before the motions judge.  As a result, the effect of a lump sum
    spousal support award on the fathers bankruptcy was a critical consideration.

[73]

In
Schreyer v. Schreyer
, 2011 SCC 35, [2011] 2 S.C.R. 605, the Supreme
    Court discussed the interplay between provincial family law statutory schemes
    and federal bankruptcy law in the context of unpaid equalization payments.  On
    bankruptcy, an unpaid equalization payment is swept into the bankruptcy of
    the bankrupt payor spouse.  The equalization claim is a provable claim under the
BIA
, and the bankrupt is released from that claim once discharged.  In
    contrast to an unpaid equalization claim, the bankrupt is not released on
    discharge from either a support claim or a claim for arrears in support:
Schreyer
,
    at para. 20;
Thibodeau v. Thibodeau
, 2011 ONCA 110, 104 O.R. (3d) 161,
    at para. 37.

[74]

The
Schreyer
court also addressed the unfairness that can arise under the
BIA
scheme in family law cases, at paras. 25 and 37:

I do not doubt that an outcome like
    the one in this appeal looks unfair, given that the appellants equalization
    claim was based primarily on the value of an asset  the farm property  which
    was exempt from bankruptcy and therefore not accessible to other creditors. 
    None of the policies underlying the
BIA
require that the appellant
    emerge from the marriage with no substantial assets.
Parliament could amend the
BIA
in respect of the effect of a bankrupts discharge
    on equalization claims and exempt assets.  But the absence of such an amendment
    makes the outcome of this case unavoidable.


.

In its current form, therefore, the
BIA
offers limited remedies to spouses in the appellants position.
In this regard, family law may provide them with a
    safer harbour after the bankrupt has been discharged, more particularly through
    spousal support
. The appropriateness of awarding or varying spousal
    support and the quantum of support are matters that fall within the discretion
    of the family court.
If a support order
    were made in a case like this one, the court might well aim to mitigate the
    inequities arising from the bankruptcy, such as the release of the debtor
    spouse from an equalization claim or the retention by the debtor spouse of an
    exempt asset.  Such determinations must be made on a case-by-case basis
. 
    [Citations omitted.]

[75]

The
    motions judge recognized that an outstanding equalization payment cannot be
    enforced as a preferred claim in the payor spouses bankruptcy proceeding.  The
    hearing transcript reveals that, on multiple occasions throughout his exchanges
    with counsel, the motions judge stated that he did not propose to make an
    order that [the mothers] equalization payment be enforced in preference to
    other creditors in the bankruptcy.  He noted that any support order must be
    based on need and ability to pay, recognizing that the mothers need for
    support may be greater given her unpaid equalization claim.

[76]

Further,
    the motions judge appreciated that lump sum support awards should not be employed
    by the courts to redistribute assets between separated couples, as held by this
    court in
Crawford
, at para. 52.

[77]

Both
    the
FLA
and the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)
    afford family law judges a broad discretion to award periodic or lump sum
    spousal support, or to make an award comprising both forms of support.  But
    that discretion does not allow for the redistribution of assets by means of an
    award of spousal support.  As the
Crawford
court emphasized, at para.
    60: a lump sum award should not be made in the guise of support for the
    purpose of redistributing assets.

[78]

The
    mothers change motion was clearly premised on converting her unpaid
    equalization payment into spousal support, in order to avoid the release of the
    fathers equalization debt on his discharge from bankruptcy.  In these
    circumstances, it was incumbent on the motions judge to address fully the
    relevant considerations relating to the fathers bankruptcy.  In my view, with
    respect, he failed to do so.

[79]

More
    particularly, although the motions judge referenced both
Schreyer
and
Crawford
,
    he failed to consider the fathers status as an undischarged bankrupt, the
    effect of a lump sum spousal support award on the fathers ongoing bankruptcy,
    and the implications of the fathers eventual discharge from bankruptcy on the
    parties financial circumstances and assets.

[80]

In
    the present case, these were necessary and pertinent considerations.  Yet, the
    record suggests that, in awarding lump sum spousal support to the mother and regardless
    of the status of the fathers bankruptcy, the motions judge simply converted
    the mothers equalization claim into an entitlement to lump sum spousal
    support, in addition to the periodic spousal support that the father was
    already paying.  This was impermissible.

(f)

Conclusion

[81]

In
    light of the errors described above, I conclude that the motions judges award
    of lump sum spousal support cannot stand.  I would therefore set aside his lump
    sum spousal support award, without prejudice to the mothers right to renew her
    request for a change in spousal support, on a proper record, as she may be
    advised.

(ii)     Charging Order

[82]

The
    motions judge directed that the lump sum and periodic spousal support awarded
    to the mother be subject to a charging order over certain of the fathers
    assets, namely, one of his bank accounts, two of his R.R.S.P.s, and one-half
    of a specific pension asset.

[83]

The
    father challenges this charging order.  He argues that the mother did not seek
    a charging order under s. 9(1)(b) of the
FLA
in her notice of motion
    and did not adduce any evidence or make any arguments in support of such an
    order at the hearing before the motions judge.

[84]

I
    note that it is s. 34(1)(k) of the
FLA
, not s. 9(1)(b), that allows for
    a charging order to enforce spousal support.  The motions judge thus misspoke
    when he referenced the latter section as the source of his authority to impose
    a charging order in respect of spousal support.  That said, nothing turns on
    this issue.  The father does not challenge the motions judges authority under
    the
FLA
to make a charging order.  Rather, he essentially submits that
    he was denied procedural fairness with respect to this aspect of the motions
    judges order.  I disagree.

[85]

It
    is true that the mothers December 5, 2014 notice of motion does not mention a
    charging order.  However, contrary to the fathers submission, the hearing transcript
    confirms that the subject of a possible charging order was raised by the
    motions judge.  The father had full opportunity, through counsel, to address
    the issue.  I am not persuaded, therefore, that hearing fairness was
    compromised in any material way in respect of this issue.

[86]

However,
    since I would set aside the motions judges lump sum spousal support award, it
    follows that the charging order in respect of that award must also fall. 
    Furthermore, at the time of the hearing before the motions judge and the appeal
    hearing, the fathers periodic support payments were in good standing.  By
    reason of s. 178(1)(c) of the
BIA
, his liability for those payments was
    not released on his discharge from bankruptcy.  The motions judge provided no
    reasons for the charging order in respect of the fathers periodic spousal
    support payments.  In these circumstances, the justification for such an order is
    not apparent.

[87]

I
    therefore conclude that the charging order must be set aside in its entirety,
    without prejudice to the mothers right to seek such an order under s. 34(1)(k)
    of the
FLA
, on proper motion and supporting materials.  Given this
    conclusion, it is not necessary to determine whether the motions judges charging
    order was overly broad in scope and whether he had the authority to grant a
    charging order over the assets targeted by his order, given the fathers
    assignment in bankruptcy.  Nothing in these reasons should be understood as
    suggesting that the motions judge had jurisdiction to grant a charging order in
    respect of all the assets he identified,
e.g.
the fathers bank
    account.

(4)

OCL Direction

[88]

The
    remaining ground of appeal concerns the motions judges order that the parties
    follow the direction of the OCLs counsel regarding the interpretation of the
    motions judges order.  The father argues that this aspect of the motions
    judges order violated the [fathers] right to counsel of his choice in
    addition to precipitating a conflict of interest since the [OCL] acted for [the
    daughter].

[89]

I
    would reject this argument.  I see nothing objectionable in the motions judges
    impugned direction, the language of which is set out at paragraph 9 of these
    reasons.

[90]

First,
    the direction focuses on the parenting and access schedule fixed by the motions
    judge.  The father does not appeal from the motions judges ruling regarding
    custody and access.

[91]

Second,
    the direction provides that the set parenting and access schedule be monitored
    by the OCL.  This is a common and laudable provision that was clearly intended
    to prevent further, unnecessary litigation between the parties regarding
    custody and access.  This accords with the best interests of the children and
    the interests of the administration of justice.

[92]

Third,
    contrary to the fathers submission, nothing in the direction requires the
    father to seek or follow legal advice from the OCLs lawyer.  The direction
    stipulates that the parties are to co-operate with counsel for the OCL in
    respect of the interim custody and access arrangements ordered by the motions
    judge.  It requires the parties to follow his direction as to the
    interpretation of the motions judges order.  This language simply obliges the
    parties to follow the OCLs direction in the event of any disagreement about
    the terms of the motions judges interim order.  It in no way prevents either
    party from consulting with their own counsel and, if so advised, returning any
    matter of disagreement before the Superior Court for reconsideration or
    clarification.  The parties remain free to retain, consult and instruct counsel
    of their choice on all matters in dispute.

IV.     Disposition

[93]

For
    the reasons given, I would allow the appeal in part, in accordance with these
    reasons.  Specifically, I would vary the motions judges order: i) by providing
    that the mother pay child support of $101.68 per month to the father for the daughter
    commencing February 27, 2015; and ii) by deleting paragraph 11 (the lump sum
    spousal support award) and paragraph 13 (the charging order) of the motions
    judges order, without prejudice to the mothers right to apply anew for the
    relief contemplated by those paragraphs, on a proper record and with proper
    notice.  In all other respects, I would dismiss the appeal.

[94]

As
    success on the appeal has been divided, I would award no costs of the appeal.

Released:

DEC -4 2015                                    E.A.
    Cronk J.A.

EAC                                                I
    agree P. Lauwers J.A.

I
    agree K. van Rensburg J.A.


