Mwanri v. Mwanri, (2015) 343 O.A.C. 154 (CA)

• Judge: Cronk, Lauwers and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 03, 2015
• Jurisdiction: Ontario
• Citations: (2015), 343 O.A.C. 154 (CA);2015 ONCA 843

Mwanri v. Mwanri (2015), 343 O.A.C. 154 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.010

Ernest Josiah Mwanri (appellant/respondent) v. Irene Elias Mwanri (respondent/applicant)

(C60177; 2015 ONCA 843)

Indexed As: Mwanri v. Mwanri

Ontario Court of Appeal

Cronk, Lauwers and van Rensburg, JJ.A.

December 4, 2015.

Summary:

On a variation application in a family law matter, a motions judge varied custody and spousal support, including awarding the wife a lump sum equivalent to an unpaid equalization payment. The husband/father appealed, raising a number of issues.

The Ontario Court of Appeal allowed the appeal in part. The court varied the motions judge's order by requiring the mother to pay child support, by deleting the requirement that the husband pay a lump sum and by setting aside a charging order.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See Family Law - Topic 2530 ].

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - A father challenged a motions judge's rulings on child an spousal support issues that were adverse to him, arguing that the judge's conduct of the hearing created a reasonable apprehension of bias - He claimed that the motions judge failed to act impartially, instead conducting himself as "a partisan advocate" for the mother, failed to afford him a fair opportunity to be heard, and he made findings adverse to the father that were not supported by the evidence - The Ontario Court of Appeal rejected the father's bias claim - While the judge took an active role in the hearing, the transcript revealed nothing that rose to the high level required to meet the test for a reasonable apprehension of bias - See paragraphs 13 to 22.

Family Law - Topic 975

Husband and wife - Actions between husband and wife - Practice - Order affecting rights in bankruptcy proceedings - [See fourth Family Law - Topic 2483 ].

Family Law - Topic 2172

Custody and access - Enforcement of orders - Requirement that parties follow directions of Office of the Children's Lawyer regarding interpretation of order - A motions judge varied custody and access - The judge also ordered that the parties follow the directions of counsel for the Office of the Children's Lawyer (OCL) regarding interpretation of the motions judge's order - The father appealed, arguing that this aspect of the motions judge's order violated his right to counsel of his choice in addition to precipitating a conflict of interest since the OCL acted for the daughter - The Ontario Court of Appeal rejected this argument - There was nothing objectionable with the motions judge's direction - It was in the best interests of the child - The parties were not prevented from consulting counsel - See paragraphs 88 to 92.

Family Law - Topic 2211

Maintenance of spouses and children - General principles - Retrospective or retroactive orders - After a summer access visit with her father, on July 11, 2014, a daughter refused to return to the mother's (i.e., the custodial parent's) home - The father moved to vary custody and support - The motions judge granted the father continuing temporary sole custody and terminated child support as of the date of his order (February 27, 2015) - The father appealed, arguing that the motions judge erred in failing to retroactively terminate his child support effective July 11, 2014, and by failing to credit him for his child support payments for the daughter during the eight months prior to the hearing - The Ontario Court of Appeal rejected the father's arguments - The motions judge considered the issue and provided clear reasons for his decision - There was no basis for appellate intervention - See paragraphs 23 to 36.

Family Law - Topic 2343

Maintenance of wives and children - Maintenance of children - When available - After a summer access visit with her father, on July 11, 2014, a daughter refused to return to the mother's (i.e., the custodial parent's) home - A motions judge allowed a request by the father to vary custody and support - The father appealed, arguing that the motions judge erred by failing to order that the mother pay prospective child support for the daughter and by failing to order that the mother contribute to the daughter's extraordinary expenses - The Ontario Court of Appeal agreed with the father's first submission, but disagreed with the second - The motions judge erred by failing to order $101.68 per month in child support for the daughter, given the mother's concession that she should pay Guideline support - See paragraphs 37 to 46.

Family Law - Topic 2353

Maintenance of spouses and children - Maintenance of children - Retroactive maintenance - [See Family Law - Topic 2211 ].

Family Law - Topic 2357.1

Maintenance of wives and children - Maintenance of children - Considerations - Support tables - [See Family Law - Topic 2343 ].

Family Law - Topic 2381

Maintenance of spouses and children - Variation - General - The Ontario Court of Appeal discussed the approach to be taken by a judge on a motion to vary spousal support where a wife was already receiving periodic spousal payments that were in good standing - The court stated that in those circumstances, the proper approach to the evaluation of the wife's 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 wife's needs and the husband's ability to pay - 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 the original order were adequate in light of the parties' changed circumstances - See paragraphs 58 and 59.

Family Law - Topic 2384

Maintenance of spouses and children - Variation of - Grounds (incl. changed circumstances) - [See Family Law - Topic 2381 and first Family Law - Topic 2483 ].

Family Law - Topic 2483

Maintenance of wives and children - Awards - Lump sum payments - A wife sought a variation of spousal support, seeking a lump sum payment - A motions judge awarded the wife lump sum spousal support and ordered that periodic payments continue - The husband appealed, arguing that the judge erred in finding that his bankruptcy constituted a material change in circumstances entitling the wife to a reconsideration of support - The Ontario Court of Appeal rejected this ground of appeal, noting that the motions judge considered circumstances other than just the father's bankruptcy in finding a material change in circumstances - There were enough factors to entitle the judge to reconsider spousal support - See paragraphs 47 to 57.

Family Law - Topic 2483

Maintenance of wives and children - Awards - Lump sum payments - A wife sought a variation of a spousal support order - A motions judge awarded the wife lump sum spousal support in an amount equivalent to an unpaid equalization payment and ordered that periodic payments continue - The husband appealed - The Ontario Court of Appeal held that the motions judge's approach was fatally flawed - The judge focussed solely on the merits of the lump sum award without first addressing the adequacy of the existing periodic spousal support award under the original order (i.e., he failed to address the proper question once he had determined that there had been a material change in circumstances) - Further, the motions judge also continued periodic spousal support without providing reasons for doing so - The motions judge's approach supported the conclusion that the underlying purpose of his lump sum spousal support award was merely to convert the mother's unpaid equalization payment into lump sum spousal support - See paragraphs 58 to 61.

Family Law - Topic 2483

Maintenance of wives and children - Awards - Lump sum payments - A wife sought a variation of her court ordered periodic spousal support payments - A motions judge awarded the wife lump sum spousal support in an amount equivalent to an unpaid equalization payment and ordered that periodic payments continue - The husband appealed - The Ontario Court of Appeal held that the motions judge's lump sum award was fatally flawed because he failed to follow the governing principles set out in Davis v. Crawford (Ont. C.A. 2011) - It was not apparent from the motions judge's reasons whether he considered the specific purposes of lump sum spousal support in the circumstances of this case, the husband's 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 - He also failed to weigh the perceived advantages of a lump sum spousal support award against the disadvantages of making such an award - See paragraphs 49 and 62 to 68.

Family Law - Topic 2483

Maintenance of wives and children - Awards - Lump sum payments - A wife sought a variation of her court ordered periodic spousal support payments, asking that her unpaid equalization payment be converted into spousal support - The motion was premised on converting her unpaid equalization payment into spousal support in order to avoid the release of her husband's equalization debt on his discharge from bankruptcy - A motions judge awarded lump sum spousal support equal to the unpaid equalization payment and ordered that periodic payments continue - The husband appealed - The Ontario Court of Appeal held that in these circumstances, it was incumbent on the motions judge to address fully the relevant considerations relating to the husband's bankruptcy - In the court's view, he failed to do so - In particular, he failed to consider the husband's status as an undischarged bankrupt, the effect of a lump sum spousal support award on his ongoing bankruptcy, and the implications of the husband's eventual discharge from bankruptcy on the parties' financial circumstances and assets - Here, the motions judge simply converted the wife's equalization claim into an entitlement to lump sum spousal support, in addition to the periodic spousal support that the husband was already paying - That was impermissible - See paragraphs 50 and 69 to 81.

Family Law - Topic 2530

Maintenance of wives and children - Enforcement - Orders - Security for payment of support (incl. charging order) - A wife sought a variation of spousal support, seeking a lump sum payment - A motions judge awarded the wife lump sum spousal support and ordered that periodic payments continue - The judge ordered that the support be subject to a charging order under s. 9(1)(b) of the Family Law Act (FLA) - The husband appealed, arguing that the wife did not seek a charging order (i.e., there was a lack of procedural fairness) - The Ontario Court of Appeal noted that it was s. 34(1)(k) of the FLA that allowed for a charging order to enforce spousal support, but nothing turned on that issue - Further, there was no lack of hearing fairness - However, the court set aside the charging order because the motions judge failed to provide reasons for granting the order in respect to the period payments - See paragraphs 82 to 88.

Family Law - Topic 4011

Divorce - Corollary relief - Maintenance awards - Awards - Lump sum - [See all Family Law - Topic 2483 ].

Family Law - Topic 4017

Divorce - Corollary relief - Maintenance and awards - Awards - Variation of periodic payments or lump sum award - [See all Family Law - Topic 2483 ].

Cases Noticed:

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 16].

Martin v. Sansome (2014), 314 O.A.C. 375; 118 O.R.(3d) 522; 2014 ONCA 14, refd to. [para. 17].

Chippewas of Mnjikaning First Nation v. Ontario (Minister Responsible for Native Affairs) et al. (2010), 265 O.A.C. 247; 2010 ONCA 47, leave to appeal refused (2010), 409 N.R. 396 (S.C.C.), refd to. [para. 18].

Davis v. Crawford (2011), 277 O.A.C. 200; 106 O.R.(3d) 201; 2011 ONCA 294, refd to. [para. 49].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 51].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 59].

Schreyer v. Schreyer, [2011] 2 S.C.R. 605; 418 N.R. 61; 268 Man.R.(2d) 154; 520 W.A.C. 154; 2011 SCC 35, refd to. [para. 73].

Thibodeau v. Thibodeau (2011), 277 O.A.C. 359; 104 O.R.(3d) 161; 2011 ONCA 110, refd to. [para. 73].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 9(1)(b) [para. 47]; sect. 33(9) [para. 63]; sect. 34(1)(k) [para. 84].

Counsel:

Miguna Miguna, as agent, for the appellant;

Cynthia Mancia, for the respondent;

Mark N. Demeda, for the Office of the Children's Lawyer.

This appeal was heard on September 3, 2015, before Cronk, Lauwers and van Rensburg, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Cronk, J.A., on December 4, 2015.