Court of Appeal for Ontario
Before: SIMMONS and MACFARLAND JJ.A. and EPSTEIN J. (ad hoc)
Between:
PETER ROSCOE
Applicant
And
KENDRA ROSCOE
Respondent
Counsel:
Peter Karl Roscoe (in person)
Jirina Bulger for the respondent Kendra Roscoe
Heard and released orally: June 29, 2007
On appeal from the order of Justice Denis J. Power of the Superior Court of Justice dated November 29, 2005.
ENDORSEMENT
1The appellant appeals from an order of Power J. (“the motion judge”) dated November 29, 2005. The motion judge dismissed the appellant's motion dated November 1, 2005 for a declaration that certain sections of the Family Law Rules and the Child Support Guidelines are unconstitutional, for a declaration that the child support order made by DeSousa J. is unconstitutional and for a new child support order that conforms with the law. In addition, at the request of the respondent, the motion judge made an order under s. 140 of the Courts of Justice Act requiring that the appellant seek leave before commencing or continuing further proceedings arising out of his marriage or his rights as a parent. The s. 140 order expressly provided that it applied to the appellant's motion dated October 6, 2005.
2Apart from the terms imposed in relation to the order under s. 140 of the Courts of Justice Act, we see no merit in the appellant's many grounds of appeal. On our review of his written material, the appellant was attempting before us and before the motion judge to re-litigate issues that were or could have been dealt with before DeSousa J. and on the appellant's subsequent appeals from her order. These issues are res judicata; the appellant's attempts to re-litigate them justified the motion judge's order under s. 140 of the Courts of Justice Act.
3As for the appellant's claim that the motion judge either failed to deal with his request for a variation of the child support order or erred in failing to find that his financial circumstances had changed in a way that justified a variation of the child support order, we note the motion judge's finding that the appellant's position on the motion concerning his financial circumstances was at odds with the position the appellant had advanced to obtain mortgage financing. In the circumstances, we find no error in the motion judge's conclusion that the appellant had not proven a change in circumstances warranting a variation of child support. Moreover, the motion judge’s order leaves it open to the appellant to apply for leave to proceed with his October 6, 2005 motion, provided he does so on a proper basis.
4We see no merit in the appellant's objection that he was unable to file the transcript of the proceeding before the motion judge on this appeal. The motion proceeded on affidavit evidence. Moreover, we are not persuaded that transcripts were required for the purposes of the appeal. In our view, the motion judge was authorized to deal with the respondent's motion under s. 140 of the Courts of Justice Act in the way that he did based on the language of that section.
5Further, we see no merit in the constitutional questions that have been raised for the first time in this court or those that were raised before the motion judge.
6In our view, however, the term imposed by the motion judge requiring that the appellant post security for costs in the amount of $5000 in conjunction with any ex parte request for leave to commence further proceedings was unreasonable. The respondent did not seek such a term and has no objection to it being deleted.
7Finally, although we note that the issue may be res judicata, the respondent has conceded that there was a clerical error in the quantum of the child support order made by DeSousa J. While we are concerned that the error has not been corrected, we note that the respondent has offered to do so by way of an appropriate consent order but that the appellant has not co-operated in facilitating it being obtained. In the circumstances, it would not be appropriate for us to make any order.
8Accordingly, the appeal is allowed in part and the term of the order under s. 140 of the Courts of Justice Act requiring that security for costs in the amount of $5000 be posted in conjunction with any request for leave to commence proceedings is deleted. In addition, we note that the respondent acknowledges that the s. 140 order does not preclude the appellant from responding to proceedings launched against him. We agree with that acknowledgment.
9Costs of the appeal are to the respondent on a partial indemnity scale fixed at $7500 inclusive of disbursements and applicable GST.
“Janet Simmons J.A.”
“J. MacFarland J.A.”
“Epstein J. (ad hoc)”
