Zinyama-Mubili v. Mubili, (2009) 255 O.A.C. 183 (DC)

• Judge: Price, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: September 25, 2009
• Jurisdiction: Ontario
• Citations: (2009), 255 O.A.C. 183 (DC)

Zinyama-Mubili v. Mubili (2009), 255 O.A.C. 183 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. OC.059

Agnes Zinyama-Mubili (respondent in appeal/applicant) v. Viktor Mubili (appellant/respondent)

(DC-09-0040-00; 5514-08)

Indexed As: Zinyama-Mubili v. Mubili

Court of Ontario

Superior Court of Justice

Divisional Court

Price, J.

October 7, 2009.

Summary:

These motions concerned one of five proceedings before the Divisional Court and the Superior Court, arising from the self-represented parties' separation. In one action the court had intervened by granting summary judgment dismissing the husband's claim, in two others, by staying the actions until the husband had paid costs and security for costs and, in a fourth, by dismissing his motion to set aside a consent order dealing with custody and access and by requiring him to obtain leave of the court before taking any steps other than his appeal from the order dismissing the consent order. The wife now sought an order dismissing her husband's appeal to the Divisional Court from a February 25, 2009, order of Miller, J., dismissing her husband's motion to set aside a final order of Mossip, J., made October 31, 2008. Mossip, J.'s order, made on consent, granted the wife custody of the parties' son and granted access to the husband. The wife submitted that her husband's appeal from Miller, J.'s order was not properly made to the Divisional Court. Further, she submitted that the appeal was made beyond the period permitted by the Rules and was an indirect attack on several interim orders made in the proceeding. The husband sought an order striking out his wife's motion on the ground that it was procedurally unfair to him. In the event that the appeal was not properly made to the Divisional Court, he asked that the Divisional Court transfer it to the Court of Appeal under ss. 19(3), 6(3) and 110(1) of the Courts of Justice Act. If his appeal was allowed to proceed, both parties sought orders in connection with the documents filed in the appeal and costs.

The Ontario Divisional Court dismissed the husband's motion to strike the wife's motion; allowed the wife's motion to strike the husband's notice of appeal; and ordered the husband to pay the wife $3,000 costs within 30 days.

Courts - Topic 7506

Provincial courts - Ontario - Divisional Court - Jurisdiction - Appeals from interlocutory orders - A wife sought an order dismissing her husband's appeal to the Divisional Court from an order of Miller, J., dismissing her husband's motion to set aside a final order of Mossip, J. - Mossip, J.'s order, made on consent, granted the wife custody of the parties' son and granted access to the husband - The wife submitted that her husband's appeal from Miller, J.'s order was not properly made to the Divisional Court - Further, it was made beyond the period permitted by the Rules - The Ontario Divisional Court held that Mossip, J.'s order was a final order and no appeal was taken from it - Miller, J.'s order refusing to set aside Mossip, J.'s order was an interlocutory order, since it did not decide the issue of custody and access on a final basis - The final order was made by Mossip, J. - Therefore, an appeal from Miller, J.'s order was to the Divisional Court with leave of a Superior Court judge - Therefore, the husband's route of appeal was properly to the Divisional Court - However, he had not acquired the necessary leave from a Superior Court judge (Courts of Justice Act, s. 19(1)(b)) - See paragraphs 50 to 58.

Practice - Topic 3055

Applications and motions - General - What constitutes an interlocutory application or motion - [See Courts - Topic 7506 ].

Practice - Topic 3129

Applications and motions - Motions - Adjournments - A wife sought an order dismissing her husband's appeal to the Divisional Court from an order of Miller, J., dismissing her husband's motion to set aside a final order of Mossip, J. - Mossip, J.'s order, made on consent, granted the wife custody of the parties' son and granted access to the husband - The husband sought an order striking out his wife's motion on the ground that it was procedurally unfair to him - The Ontario Divisional Court stated that while it might appear to the husband that his wife was seeking to ambush him by scheduling her motion with a return date on the same day that she knew he would be returning from the bush, the facts also supported the alternative explanation that she selected that date because it was one when she had reason to believe that he would be available - Further, she did not appear to resist his request for an adjournment - In any event, the motion was adjourned for more than a month, which gave the husband ample time to prepare for it and to deliver responding material, which he did - See paragraphs 63 to 68.

Practice - Topic 5408.1

Judgments and orders - General - Collateral attack - A wife sought an order dismissing her husband's appeal to the Divisional Court from a February 25, 2009, order of Miller, J., dismissing her husband's motion to set aside a final order of Mossip, J., made October 31, 2008 - Mossip, J.'s order, made on consent, granted the wife custody of the parties' son and granted access to the husband - She submitted, inter alia, that the appeal was an indirect attack on several interim orders made in the proceeding - The Ontario Divisional Court disagreed - It was true that on September 17, 2008, Belleghem, J., made an ex parte order granting the wife temporary custody and on October 2, 2008, Herold, J., after hearing both parties, made a temporary order that the child reside with the wife with access to the husband - However, Herold, J., vacated Belleghem, J.'s ex parte order and specifically reserved the issues of custody and access to the judge presiding at the October 31, 2008, settlement conference - The husband's appeal from Miller, J.'s order dismissing his motion to set aside the consent order that Mossip, J., made on October 31, 2008, could not be said to be a collateral attack on those earlier orders - Belleghem, J.'s order was an ex parte order, which lasted only until it was superseded by Herold, J.'s order - Herold, J.'s order was also a temporary one, lasting only until the settlement conference - It was superseded by Mossip, J.'s October 31, 2008, order, based on the parties' minutes of settlement - Rather than being a collateral attack on Herold, J.'s order, the husband's motion, if successful in reversing Miller, J.'s order refusing to set aside Mossip, J.'s order, would have the effect of reinstating Herold, J.'s October 2, 2008, order, unless a further order was made in substitution for it - Since Mossip, J.'s order was made on consent and at a settlement conference, there was no real likelihood that the Divisional Court would substitute its own custody and access decision for the one made by Mossip, J. - The matter would rather be adjourned to a new hearing before a different judge - See paragraphs 60 to 62.

Cases Noticed:

Antique Treasures of the World Inc. v. Bauer et al., [2003] O.A.C. Uned. 29; 2003 CanLII 35349, refd to. [para. 51, footnote 2].

Hrab v. Hrab (1992), 54 O.A.C. 194; 88 D.L.R.(4th) 525 (Div. Ct.), refd to. [para. 58, footnote 3].

Huddersfield Banking Co. v. Lister (Henry) and Son Ltd., [1895] 2 Ch. 273 (C.A.), refd to. [para. 70, footnote 4].

Canadian Imperial Bank of Commerce v. Whites Lake Services Ltd. et al. (1982), 56 N.S.R.(2d) 236; 117 A.P.R. 236; 32 C.P.C. 128 (Co. Ct.), refd to. [para. 70, footnote 4].

Kline, Re, [1924] 1 D.L.R. 295 (N.S.S.C.), refd to. [para. 70, footnote 4].

Monarch Construction Ltd. v. Buildevco Ltd. (1988), 26 C.P.C.(2d) 164 (Ont. C.A.), refd to. [para. 70, footnote 5].

Counsel:

Agnes Zinyama-Mubili, self-represented;

Viktor Mubili, self-represented.

These motions were heard on September 25, 2009, by Price, J., of the Ontario Divisional Court, who delivered the following decision on October 7, 2009.