Court File and Parties

COURT FILE NOS.: CV-22-15 and FS-21-304-00AP DATE: 2022-04-19 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jenna Ashley Austin, Applicant AND: Benjamin House, Respondent

AND RE: Benjamin House, Applicant AND: Jenna Ashley Austin, Respondent

BEFORE: Justice D.A. Broad

COUNSEL: Nolan Wilson and Deborah Ditchfield, for the Applicant/Respondent Jenna Ashley Austin Michael H. Tweyman, for the Respondent/Applicant Benjamin House

HEARD: April 4, 2022

Endorsement

Nature of the Application and Motion

[1] The respondent in family appeal proceeding FS-21-304-00AP (the “appeal” or “appeal proceeding”) Jenna Ashley Austin (the “mother”) has brought an application pursuant to ss. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 in file CV-22-15 (the “vexatious litigant application”) for an order prohibiting the appellant in FS-21-304-00AP Benjamin House (the “father”) from instituting any proceeding, or continuing any proceeding previously instituted, in any court except with leave of a judge of the Superior Court of Justice.

[2] The father opposes the vexatious litigant application and has brought a motion (the “motion to extend”) for an order extending the time to perfect his appeal from the order of the Honourable Justice Baker of the Ontario Court of Justice dated October 20, 2021 (the “appealed order”). The appealed order dismissed the father’s motion to change three previous orders of Baker, J. dated May 15, 2018, January 25, 2019, and March 8, 2019 (the “underlying orders”), respectively, on a motion for summary judgment brought by the mother. The changes to the underlying orders sought by the father relate to parental decision-making, parenting time and place of exchange in relation to the parties’ twin daughters, both born August 24, 2016 (the “children”).

[3] The mother opposes the motion to extend and takes the position that the appeal should be stayed in the event an order is made against the father in the vexatious litigant application.

[4] On March 2, 2022, on consent of the parties, I ordered that the vexatious litigant application and the motion to extend be heard together or one after the other.

A – Vexatious Litigant Application - s. 140 of the Court of Justice Act

Litigation History

[5] The following is a brief summary of the history of the litigation between the parties:

(a) September 2016 - application in the Ontario Court of Justice brought by the father seeking joint custody (decision-making) and equal parenting time;

(b) May 15, 2018 - on the first day of trial of the father’s application the parties agreed to an order (the “consent order”) that the mother have sole custody of the children and final decision-making authority with respect to major decisions regarding the children, following consultation with the father. The consent order included the following provision:

“6. … The matter of custody/final decision-making shall be subject to a review when the children commence four-day schooling (either JK or SK), with respect to how the process has worked and whether the consultative process has been fully followed and whether a change should be made in the best interests of the children.”

The trial proceeded over 17 days from May 15 to December 18 2018 on the issue of the father’s parenting time with the children.

(c) January 25, 2019 - Justice Baker made a final order following trial providing for parenting time to the father on alternate weekends, initially from Saturday at 8 AM until Sunday at noon, increasing on September 28, 2019 to Saturday at 8 AM to Sunday at 6 PM, and increasing further on December 20, 2019 to Friday at 6 PM until Sunday at 6 PM, together with a weekly midweek visit from 3 PM to 6 PM.

(d) March 8, 2019 - order of Justice Baker, made at the request of the mother who sought reopening of the trial to address difficulties with exchanges of the children, that all further exchanges take place at the Brantford Police Services Central Station unless otherwise agreed.

(e) April 29, 2019 - order of Justice Baker requiring the father to pay to the mother costs in the amount of $175,000, with 10% to be enforced through the Family Responsibility Office;

(f) February 22, 2019 – Notice of Appeal delivered by the father, followed by three amended Notices of Appeal. The father sought to appeal five orders, namely the consent final order dated May 15, 2018, the trial decision of Baker, J. dated January 25, 2019, the leave to re-open the trial order dated February 19, 2019, the exchange location order dated March 8, 2019 and the trial costs order dated April 29, 2019.

(g) November 28, 2019 – consent order of Sheard, J. that the father be permitted to revise his appeal materials including his Factum.

(h) August 12, 2020 – order of Nightingale, J., on the mother’s motion to strike the father’s appeal and for security for costs, that the father remove various documents from his appeal materials and post security for costs of the appeal in the amount of $20,000. The parties subsequently agreed that father was required to post the security for costs by February 19, 2021.

(i) April 21, 2021 – order of Skarica, J., on motion by the mother, dismissing the father’s appeal in its entirety and ordering him to pay costs in the amount of $40,000, following the father’s failure to post security for costs as ordered by Nightingale, J. by February 19, 2021.

(j) March 3, 2021 – Motion to Change brought by the father in the Ontario Court of Justice seeking to vary the underlying orders of Baker, J.;

(k) July 16, 2021 – motion by the father for an order directing an assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

(l) October 20, 2021 – order of Baker, J. granting the mother’s motion for summary judgment and dismissing the father’s motion to change.

(m) November 16, 2021 – Notice of Appeal served by the father in respect of the order of Baker, J. dated October 20, 2021.

(n) December 16, 2021 – order of Baker J. requiring the father to pay to the mother costs in the sum of $20,000 in respect of the mother’s motion for summary judgment

Guiding Principles

[6] Subsection 140(1) of the Courts of Justice Act provides as follows:

140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

[7] The purpose for making an order declaring a party to be vexatious and the factors to consider in making such a determination were recently summarized by Marc Smith, J. in the case of Kaufman v Kechichian, 2021 ONSC 1173 at paras. 26-29 as follows:

There are two purposes for declaring a party as vexatious: (1) to prevent litigants from harassing others and; (2) to protect the vexatious litigant from squandering their own resources (Foy v. Foy (1979), 26 O.R. (2d) 220 (Ont. C.A.)).

The factors to consider in determining if a litigant is vexatious are set out in the leading case called Lang Michener Lash Johnston v. Fabian, [1987] O.J. No. 355 (Ont. H.C.):

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

For a litigant to be declared vexatious, it is not necessary that the litigant's conduct fall within each of the factors enunciated above (GoodLife Fitness Centres Inc. v. Hicks, 2019 ONSC 4942 (Ont. S.C.J.)).

The Court may look at a litigant's conduct in the institution of both the judicial and non-judicial proceedings (Bishop v. Bishop, 2011 ONCA 211 (Ont. C.A.)).

[8] In the case of Kallaba v Bylykbashi Lang, J.A., in dissent but not on this point, sounded a note of caution, observing that s. 140 is to be interpreted narrowly, such that its application should be reserved for the clearest and most compelling of cases. She stated as follows at paras. 112 to 115 (citations omitted):

The overarching purpose of the CJA when it was passed was “to comprehensively revise the legislation establishing Ontario courts and regulating their proceedings”. As such, the CJA provides the important right of access to justice for the people of Ontario. Access to justice is a fundamental pillar of the rule of law. It provides litigants with the means to determine their rights and their freedoms. As MacPherson J.A. said in Carom v. Bre-X Minerals Ltd. (2000), 51 O.R. (3d) 236 (C.A.) at para. 5: “Quite clearly, effective access to justice is a precondition to the exercise of all other legal rights.”

Section 140 creates an exception to access to justice by providing a mechanism to prevent a litigant from instigating or conducting litigation for an improper purpose; it protects litigants from proceedings that are an abuse of the court’s process. In so doing, s. 140 also protects the justice system against the inappropriate use of its finite resources.

In Ballentine, [2003] O.J. No. 2589 (C.A.)] MacPherson J.A. wrote at para. 39 that a vexatious litigant order “is particularly important in family law matters, given the availability of variation orders for support and custody”. At the same time, Davidson J. in Winkler v. Winkler (1990), [1991] 2 W.W.R. 369 (Man. Q.B.), aff’d (1991), [1992] 1 W.W.R. 631 (C.A.), reminds us why such an order is exceptional, saying that it:

should be used in only the rarest of circumstances. It is difficult to think of a more fundamental human right than the right to access to our justice system. No one should have that right restricted except for the clearest and most compelling of reasons. (p. 374)

In the leading Canadian authority of Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220 (C.A.), leave to appeal to S.C.C. refused, [1979] 2 S.C.R. vii, Howland C.J.O. noted two purposes for a vexatious litigant declaration: first, to prevent litigants from harassing others; and, second, to protect vexatious litigants from squandering their own resources. A vexatious litigant declaration is akin to a stay for abuse of process, except it is aimed at the litigant rather than at the specific litigation. It denies access to the courts for those litigants who use the system for an improper purpose unless they first obtain leave of a court. If leave is denied, the litigant has no right of appeal. It follows that a vexatious litigant order is a serious curtailment of a basic civil right. As such, the provision authorizing this remedy must be interpreted narrowly.

[9] Davidson, J. in Winkler commented at paras. 35-36 on the tension between the need for flexibility in family proceedings especially involving parenting issues in order to maintain access to the court to address changes in circumstances on one hand, and the need to prevent the litigation process being used as a tool of harassment on the other:

The application of the [vexatious litigant] section to family law litigants, and in particular those pursuing custody or access claims, calls for even greater restraint, and poses even greater difficulty for the court. That is so because, unlike other actions, many family law matters are subject to variation. Matters respecting children are rarely fixed with any finality, and as circumstances vis-à-vis parents change, or circumstances vis-à-vis children change, custody and access arrangements remain flexible. What is in the best interests of a child at one point in time may not be in the best interests of that child at another point in time. Domestic litigants must have access to the courts, and often on a frequent basis, to allow them to pursue valid variation claims.

On the other hand, domestic litigants should not be able with impunity to harass the other party, or bring repetitive motions before the court with little or no prospect of success, merely because they are domestic litigants.

[10] McPherson, J.A. made the following comment in Ballentine at para. 39 in reference to this latter point from Winkler:

Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied.

Position of the Applicant Mother

[11] The mother submits as follows respecting application of the non-exhaustive and non-conjunctive list of factors informing a determination of a vexatious litigant from Fabian:

(a) The father acts with disregard for res judicata: the father persists in pursuing every available course of procedural action, with disregard for the finality of decisions and the impact of his conduct on the mother and the use of judicial resources. The father’s capacity for provocative behaviour with a view to causing distress presents itself, in part, in the perpetual rehashing of issues already decided, couching his position in his indefensible belief that his arguments on parenting issues are immune from the requirement to demonstrate material change in circumstances;

(b) The father pursues actions with little prospect of success: following the order of Nightingale J. requiring the father to post security for costs of his first appeal, the father abandoned the appeal proceeding altogether, permitting it to be dismissed for failure to post security after receiving a judicial opinion as to the limited merits of the appeal. The father’s insistence on challenging the reviewability of final orders demonstrates an unwillingness to accept final orders, and relentless approach to litigation;

(c) the respondent attempts to relitigate grounds and issues: the father’s appellate and motion to change proceedings seeking equal parenting time despite no material change in circumstances threatens the mother’s interests and the fair and efficient administration of justice. In the present appeal, the father rolls over and re-articulates arguments from the 17-day trial and his first appeal in the motion to change,

(d) the father causes a lengthy, vexatious procedural history: in addition to the proceedings in the Ontario Court of Justice and the Superior Court of Justice, the father has harassed the mother by pursuing claims against her in other spheres including the initiation of a Small Claims Court proceeding against her and her former partner alleging damage caused during a parenting time exchange, the father filing baseless complaints with Brant Family and Children’s Services (FACS) against the mother, the father commencing criminal proceedings against the mother which he ultimately withdrew, and the father filing baseless regulatory complaints against the mother’s spouse who is a Norfolk OPP officer. The misuse of these extra-judicial processes evidence a multi-faceted and unrelenting approach to litigation. The numerous specific instances of judicial condemnation of the father’s approach to litigation and the use of various procedures targeted against the mother demonstrates a pattern of behavior which will not end if only met with typical penalties such as costs orders;

(e) the father fails to satisfy significant costs orders: there is currently $217,772 payable in costs to the mother by the father. This amount is only likely to grow if the father is not made to show merit before bringing further proceedings before the courts.

(f) The father abuses appellate procedures: in appellate proceedings the father has made repeated allegations of bias or denial of procedural fairness by Justice Baker, and the Brantford location of the Ontario Court of Justice, by seeking in the current appeal a trial in another Court location. Notwithstanding the allegation of bias made against Baker, J. in his first Notice of Appeal, rather than pursue that appeal further he abandoned it and commenced a motion to change proceedings. The mother says that this conduct is suggestive of a vexatious litigant who is attempting to subvert the Court processes, referring to the case of Fatahi-Ghandehari v Wilson, 2021 ONSC 7390 at para. 63.

[12] The mother submits that collectively and individually, the multi-faceted violations by the father continue to a grieve her and waste the resources of the courts. She submits that in order to protect her and to safeguard the efficient and fair administration of justice, upon declaring the father a vexatious litigant, the court should exercise its authority to (a) stay or dismiss the father’s new notice of appeal and (b) require the father to seek leave before instituting or continuing any judicial proceeding.

Position of the respondent father

[13] The father submits as follows in response to the mother’s ss. 140(1) application:

(a) the application is unnecessary given the stage of the proceedings: the vexatious litigant application is unnecessary and is a delay tactic to prevent the father’s appeal from being heard and dealt with expeditiously. If the appeal is allowed, then there is clearly merit to the motion to change which requires a trial. If the appeal fails, the case will be at an end and if the father were to then immediately start another case, there would be an argument for vexatiousness.

(b) there is no evidence of “out-of-court” vexatiousness: at a hearing on March 1, 2022 I ordered that there shall be no cross examinations on the affidavits on this application. In oral reasons I found that the specific passages in the mother’s affidavit which the father wished to cross-examine on were, except for certain discrete examples, recitation of findings made by judges in the case or contained information the court need not consider. The father says that, by implication, there is therefore no extraneous evidence about his alleged vexatiousness, and there is, by definition, no evidence of “outside the courtroom” vexatiousness.

(c) The final consent order for custody explicitly contemplates a return to court: paragraph 6 of the final order clearly states that it shall be subject to review when the children commence full-day schooling. This term was part of a bargain that allowed the custody issues to settle. The court cannot uphold one end of the bargain while denying the other after the fact, and this issue which is subject to appeal makes the father’s motion to change an appeal not “frivolous or vexatious.” The parties agreed to a mechanism to have the court resolve disputes arising from the final order and granting the s. 140 application would undermine this aspect of the final order without justification.

(d) recent jurisprudence strongly recommends that the police station should not be used for exchanges and therefore this is not a “frivolous or vexatious” issue: citing the recent decision of Pazaratz, J. in K.M. v. J.R., 2022 ONSC 111 which was strongly critical of the use of police station for parenting exchanges, the father states that his position that the continuation of the police station as the place for exchanges is not in the children’s best interests is not a frivolous issue.

(e) The commencement of the father’s motion to change a couple of years after the original decision on parenting time on the basis of changes to the children’s behaviours and increase conflict is not in any way frivolous or vexatious. It has been held that increased conflict can constitute a material change.

(f) The father’s conduct in this case can be contrasted with that of other litigants in the jurisprudence who have been found to be vexatious: The father has started two proceedings in approximately five years and has pursued the motion to change reasonably and cooperated with the court process. The father’s conduct stands in stark contrast, both in kind and quantity, to the actions of others who have been found to be vexatious. The father is not exhibited any of the “badges” of vexatiousness.

(g) The mother’s s. 140 application relies heavily on the original trial and the commencement of the appeal in the original proceeding. The father acknowledges that there were elements in that proceeding that were unreasonable and excessive. In relation to the more recent variation proceeding, the father has tried to keep matters efficient, cost effective and concise.

(h) Unpaid costs should not determine the outcome of the application. The jurisprudence supports the principle that costs award should not prevent participation where children’s best interests are at stake. A vexatious litigant finding against the father would prevent him from having any access to the court to deal with the best interests of his children. The fact that the father has unpaid costs award should not be determinative of the application.

Discussion

[14] For the reasons that follow, I am satisfied that the father has persistently and without reasonable grounds conducted court proceedings in a vexatious manner. I also find that it is appropriate to make a remedial order to protect the mother from further harassment and to protect scarce judicial resources from being unduly monopolized by proceedings initiated by the father and conducted in a vexatious manner, so that cases of other litigants may proceed in a timely fashion. Such a remedial order would not prevent the father from having any access to the court to deal with the best interests of the parties’ children. He would just be required to obtain leave to bring any fresh proceedings.

[15] I accept that the father has commenced only two separate family proceedings in the Ontario Court of Justice, the first being his application issued in September 2016 and the second being his motion to change brought March 3, 2021. However, it is not necessary that the proceedings instituted by the father themselves be found to be vexatious. It has been held that, on the wording of ss. 140(1), “the vexatious conduct may be based upon commencing vexatious proceedings or by litigating legal proceedings vexatiously” and that as these bases are framed disjunctively, “either is sufficient and both may be present and considered” (see Peoples Trust Company v. Atas, 2018 ONSC 58 at para. 33, per Corbett, J.).

[16] In her Costs Endorsement following the 17-day trial of the father’s application, which was confined to sole issue of parenting time, Baker J. made the following observations respecting the conduct of the father in respect of the proceeding:

(a) “the applicant’s [the father] approach to the litigation generally was very unreasonable. It resulted in a much higher expenditure of time and resources then was merited or was required by the narrow scope of the issue” (para. 20);

(b) “notwithstanding [the discrete issue for trial namely time sharing] the Applicant proceeded to call extensive evidence on very tangential issues of marginal relevance. This broad sweep of evidence consumed many days of trial. The Applicant persisted in this approach despite judicial guidance reminding him of the narrow issue for adjudication” (para 21);

(c) “the Applicant also pursued various allegations and positions that were difficult to reconcile with his concession on custody and which were largely irrelevant to the issues at hand” (para 23);

(d) “the applicant advanced a relentless barrage of attack on the respondent and her caregiving capacity. It was not necessary and his behaviour in this regard extended the trial considerably beyond what was necessary to determine the discrete issue” (para 24);

(e) “the applicant’s approach to the procedural aspects of the trial was also problematic.” Examples given were (i) the father late-serving an extensive “expert” report from a Dr. Fabricious on social science evidence in custody and timeshare issues. The applicant insisted on re-visiting a ruling made at the trial management conference that this expert evidence could not be called on this point; (ii) following a ruling at the trial management conference that a witness would not be allowed to give expert evidence and qualified only as a factual witness, the father insisted on re-visiting this issue at trial which required the expenditure of additional trial time (paras. 26-28);

(f) “the Applicant unreasonably refused to acknowledge the genuineness of [text] messages and that they originated from him. This required the expenditure of considerable time in examination and cross-examination of both parties and time to argue the admissibility of the text messages” (para. 29);

(g) “the Applicant at times, was evasive and disingenuous in his assertions” (para. 30);

(h) “the Applicant served and sought to rely upon hugely voluminous materials including case briefs. For example, in closing submissions, he filed nine Books of Authority comprising about 254 cases on the straightforward issue of timesharing” (para. 31);

(i) “at the trial management conference, the Applicant indicated an intention to introduce some 24 videos into evidence…and orders were made to facilitate the introduction of the relevant portions of the evidence. The Respondent [mother] was of course required to review each of the videos. The Applicant subsequently indicated an intention to introduce only four videos. Ultimately none were introduced by the applicant” (para 32);

(j) “the sad reality…is that this trial did not need to occupy 17 days of trial. It was a discrete issue, governed by fairly straightforward law. The trial was vastly prolonged by the applicant’s approach to the litigation, including his insistence of pursuing an agenda of castigating and criticizing the respondent over all manner of issues, many of which were irrelevant to the issue for trial. This could have been, and should have been, at maximum, a five day trial” (emphasis in the original) (para. 37);

(k) “the issues that settled did not need to remain contested until the eve of trial. Waiting until the last minute to concede [sole custody to the mother and child support payable by the father] resulted in unnecessary expenditure of time preparing for trial and addressing those issues at the trial management conference” (para. 37);

(l) “the Applicant adopted a very aggressive approach to this litigation, by commencing numerous pretrial motions, re-visiting the same issues adjudicated previously, serving voluminous materials, serving materials including videotapes that were then not relied upon and calling extraneous and at times, irrelevant evidence. All of this protracted the trial into a 17 day campaign. He continued his ‘no stone unturned’ offensive despite the admonitions of the court, urging counsel to focus on the narrow issue at hand” (para. 46);

(m) “the Applicant also caused the expenditure of considerable time to prove points that should have been conceded, such as the providence of the text messages. He was evasive and on at least one occasion, attempted to mislead the court” (para. 47);

(n) “the Applicant’s approach to the procedural aspects of the trial were similarly problematic, including the manner of service and the extremely voluminous nature of the material served” (para. 48);

(o) “the Applicant had to know that his behaviour was causing financial hardship without justification” (para. 49);

(p) “the applicant has demonstrated bad faith in some aspects of the trial and in repeated particular instances” (emphasis in the original) (para. 50);

(q) “I find that the applicant conducted his case generally in an unreasonable fashion. This at times rose to the level of bad faith, and as it was apparent that the applicant’s conduct was causing the respondent major financial harm without justification” (para. 56).

[17] The father’s materials for his appeals from five orders in the Ontario Court of Justice, including Baker J.’s trial decision and costs decision following the trial comprised 14 volumes which Nightingale J. characterized at para 32 of his Endorsement as “unreasonably excessive given the only issue on appeal being that of whether the trial judge erred in not granting the Appellant equal parenting time with the children and whether she erred in her costs order for the trial.”

[18] As noted above, after serving 14 volumes of appeal materials, the father abandoned his appeal by declining to post security for costs in the sum of $20,000 as ordered by Nightingale, J. Instead of pursuing his appeal he commenced a fresh Motion to Change seeking to vary three separate orders dated May 15, 2018, January 25, 2019 and March 8, 2019 respectively, relating to parental decision-making, parenting time and place of exchange.

[19] At the time he commenced his fresh Motion to Change the outstanding costs awards owing by the father to mother comprised $215,000 ($175,000 for the trial costs order and $40,000 for the abandoned appeal order).

[20] I am unable to accept the submission of the father that reliance by the mother on the original 17-day trial and the commencement of his appeal in the original proceeding is misplaced and that his conduct in respect of those proceedings is not of significance in relation to the determination of the vexatious litigant application. The impact of the father’s conduct in those proceedings on the mother continues, not only on her financial well-being by reason of the legal costs to which she has being unnecessarily put and the father’s substantial and unsatisfied costs obligation to her, but also in the emotional toll that his vexatious conduct has taken on her. In addition, the father’s conduct has adversely impacted the administration of justice. As indicated, Justice Baker expressed the view that the 17 day trial should have occupied five days at a maximum. As result of manner in which the father conducted the trial, 12 days of judicial time in the Ontario Court of Justice was unavailable to other litigants who sought timely access to scarce judicial resources.

[21] The father’s minimization of his conduct throughout the trial as displaying “elements” of unreasonableness and excess only serves to demonstrate his lack of insight into the effects of his vexatious behaviour on the mother and on the administration of justice.

[22] In Peoples Trust Company v Atas Corbett, J. at paras. 47-49 emphasized the strain that vexatious litigants place on scarce court resources. At para. 49 he summarized the point as follows:

The courts, particularly in the area of civil justice, have been overwhelmed for many years with insufficient resources, ever-increasing caseloads, and increased requirements from appellate courts to provide more robust reasons. Each challenge may have a cogent explanation, but the overall result is considerable pressure on the civil courts to be more productive, largely by insisting on proportional approaches to litigation at every stage of the process. It is now an important aspect of the judge's job, part of the judge's duty, to guard the scarce public resource that is court time and judicial resources. Vexatious litigants, like Ms. Atas, are a gross drain on the system's resources, and need to be restrained within limits of reasonable behaviour so that other cases may also proceed.

[23] Mr. Tweyman in submissions urged the court to accept that the father has in recent times improved his behaviour and that the court can be confident that his past excesses are not likely to repeat themselves going forward. It may well be that the changes to the father’s approach to litigating with the mother are the result of Mr. Tweyman’s salutary influence on him. However, it is noteworthy that Mr. Tweyman is not on the record for the father but rather is identified as representing him “on a limited scope basis.” Accordingly, it is somewhat difficult for the mother and for the court to take comfort in the continuation of Mr. Tweyman’s beneficial influence on the father. It is axiomatic that the best predictor of a person’s future behaviour is their past behaviour. I find that the risk of a resurgence of the father’s vexatious conduct has not been eliminated. In assessing this risk, the court can also take into account the harassing extra-judicial steps that the father has taken against the mother and those close to her, and his failure to pay any portion of the costs awards against him, other than that portion subject to enforcement by FRO.

Remedy

[24] Paragraphs 140(1)(c) and (d) provide that where the subject of the application has been found to have instituted vexatious proceedings or conducted a proceeding in a vexatious manner, the judge may order that no further proceeding be instituted by the person in any court or a proceeding previously instituted by the person not be continued, except by leave.

[25] Notwithstanding the breadth of the remedy set forth in the section, it has been held that it is possible to grant a tailored order and that it will be for the court deciding a s. 140 application to decide how to frame the appropriate remedy, if one is called for. The court may make an order preventing a vexatious litigant from commencing proceedings against the particular litigant without leave, or to make an order that is more broadly framed so that the vexatious litigant would require leave to commence proceedings against anyone (see Peoples Trust Company v Atas at paras. 299-300 citing Bank of Montreal v. Cudini, 2013 ONSC 482, per Gray J., para. 104).

[26] Mr. Tweyman urged the court in submissions to stop short of stigmatizing the father by making a finding that the father is a vexatious litigant and barring him from commencing proceedings against anyone without leave, but rather to exercise the court’s inherent jurisdiction to prevent him from commencing proceedings against the mother without leave, without utilizing s. 140. However, no authority was cited for the court’s jurisdiction to take this approach or, if such jurisdiction exists, the principles which would guide its exercise.

[27] If the father had focused his vexatious behaviour solely on the mother, it may have been appropriate to grant a tailored vexatious litigant order preventing the father from commencing proceedings against her but no against others. However, as noted above, the father did not restrict himself to conducting the litigation against the mother in a vexatious manner, he also took harassing extra-judicial proceedings against her former partner and her spouse. Since the father has focused his attention beyond the mother, there is no reason to believe that a tailored order would solve the problem (see Peoples Trust Company v Atas, at para. 301).

Jurisdiction to tailor remedy to permit an appeal to proceed

[28] The question remains whether it is appropriate to apply the order so as to bar the father from proceeding with his current appeal of Baker, J.’s summary judgment dated October 20 2021 which dismissed his motion to change.

[29] It is clear that the court has jurisdiction to tailor an order following the making of a declaration that a person is a vexatious litigant to permit the person to continue with a pending appeal, as was done in the case of Roskam v Jacoby-Hawkins, 2010 ONSC 4439 at para. 33. In that case Boswell, J. ordered that no further proceedings may be instituted by the respondent to the vexatious litigant proceeding without first obtaining leave of a judge of the Superior Court of Justice but directed that the order did not affect his right or ability to continue with an appeal to the Divisional Court of the judgment of a deputy judge of the Small Claims Court.

[30] The importance of the right to appeal to the administration of justice has been emphasized repeatedly in the jurisprudence (see Zeifman Partners Inc. v Aiello, 2019 ONCA 451 per van Rensburg, J.A., at para. 8, citing Duca Community Credit Union Ltd. v Giovannoli, (2001), 142 O.A.C. 146 (Ont. C.A. [In Chambers]) at para. 14).

[31] Van Rensburg, J.A. went on to note in Zeifman at para. 8 that “even where it is difficult to see the merits of the proposed appeal, a party is entitled to appeal and should not be deprived of that entitlement where there is no real prejudice to the other side.”

[32] In my view the determination of the father’s motion to extend the time to perfect his appeal will inform the consideration of whether the father’s appeal should be carved out of the ss. 140(1) order.

B - Motion for Extension of Time to Perfect Appeal

(a) Test

[33] In the recent case of Carleton Condominium No. 28 v Bassi Construction Ltd., 2022 ONSC 759 (Div. Ct.) Copeland, J. (as she then was) noted at para 3 that the test on a motion to extend time in an appeal is well settled and was stated by Gillese, J.A. in Enbridge Gas Distribution Inc. v Froese, 2013 ONCA 131 at para. 15:

The overarching principle is whether the "justice of the case" requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and any explanation for the delay in filing;

(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

[34] The mother does not take issue with the first two factors namely whether the father formed a bona fide intention to appeal within the relevant time and the length of the delay in perfecting the appeal and his explanation for the delay. The father’s notice of appeal was served on November 19, 2021, being within 30 days of the appealed order. The notice of appeal was formerly issued by the court and filed on November 26, 2021. The date for perfection was therefore December 29, 2021. Counsel for the father requested an extension from the mother’s counsel, on December 27 2021 which was denied. The father served his Factum and Appeal Record on January 20, 2022. The father explained that the delay related to the heavy workload of Mr. Tweyman and the intervention of the winter holiday.

[35] The mother submits that (a) there is no merit to the appeal and (b) there is substantial prejudice to her if the extension of time is granted and the ultimate justice of the case favours denial of the motion to extend.

(b) Concern for the children’s best interests

[36] The mother, citing the case of Denomme v McArthur, 2013 ONCA 694 at paras. 10-13, argues that, given the importance of promoting stability for children, concerns about prejudice are heightened on motions to extend time on appellate issues pertaining to patenting arrangements.

[37] In my view Denomme is distinguishable from the case at bar. In Denomme Feldman, J.A. noted that there had been a four-month delay in the appeal and in that period the children had been on an effective access schedule ordered by the trial judge in the decision sought to be appealed and were thriving under the stability of that arrangement. Given the apparent lack of merit to the appeal Feldman J.A. found that the justice of the case did not call for an extension to be granted to the portion of the judgment that dealt with custody and access (see para. 13).

[38] By contrast, in the case at bar, the appealed order did not establish the parenting-time regime for the children, but rather it was established by Baker J.’s judgment of January 25, 2019, the appeal from which was abandoned by the father. Thus, it cannot be said that the children are thriving under the specific order under appeal.

(c) Outstanding costs awards against the father

[39] The mother also argues that, in light of the magnitude of the unmet costs awards against the father, the financial burden of the appeal alone constitutes prejudice to her.

[40] In the case of Derakhashan v. Narula, 2018 ONCA 658 Rouleau, J., writing for the panel, noted at para. 17, that the chambers judge had erred in finding that there was prejudice to the respondent on the basis that her costs award was unlikely to be satisfied. However, in my view, Derakhashan can be readily distinguished from the case at bar. In Derakhashan the outstanding costs award which the chambers judge found would be unlikely to be satisfied was that made in respect of the trial decision under appeal. There was only one other unsatisfied costs award against the appellant described as being in a “modest amount” (see para. 12).

[41] In Zaifman van Rensburg, J.A. had regard to the moving party's pattern of conduct in the litigation in considering whether an extension of the time to appeal should be granted. This included numerous breaches of court orders, including orders for costs which she specifically noted had been paid (see para. 7).

[42] In her Factum in the case at bar the mother characterized the unsatisfied costs awards against the father as “monumental.” In my view this is an apt description. Moreover, the majority of the costs incurred by the mother resulted from the vexatious conduct of the litigation by the father.

[43] I can take judicial notice that the financial burden exacted on the mother as a result of the father’s conduct of the litigation has been substantial and that it has an impact on her ability to provide and care for the children.

[44] As indicated above, each case depends on its own circumstances. The unique circumstances of this case, including:

1. the huge unmet costs awards against the father, the majority of which resulted from the father’s vexatious conduct in the litigation;

2. the fact that the father has made no voluntary payment of any part of the costs awards against him (the only payments being by FRO enforcement); and

3. the fact that the father abandoned his previous appeal rather than pay security for costs as ordered after the mother incurred at least $40,000 in legal expense in responding to that appeal,

persuade me that the justice of the case calls for the father’s motion to extend the time to perfect his appeal to be denied. The mother would be severely prejudiced by such an extension. Given the history of the father’s conduct and his failure to honour costs awards as well as an order to post security for costs, there is no realistic prospect that, if successful in responding to the appeal, the mother would be able to collect any award of costs which might be made in her favour.

(d) Merits of the appeal

[45] In Zaifman at para. 9, van Rensburg J.A. observed that “compelling merits may tip the balance in favour of an extension of time in cases where other factors may militate against extending time.”

[46] In my view the merits of the father’s appeal are far from “compelling.” The Notice of Appeal, in summary, advances the following grounds of appeal:

(a) The motion judge made a palpable and overriding error in determining that there was no genuine issue for trial and the issue of whether a material change in circumstances had occurred, and that this was compounded by the fact that the father’s motion for a s. 30 assessment was not heard prior to the motion for summary judgment;

(b) The motion judge made an error of law in determining that a material change in circumstances was required for a review of the decision-making provisions of the Order dated May 15 2018;

(c) The manner in which the motions judge grounded some of her reasons was a breach of natural justice in that her own experience as the trial judge coloured her reasons for judgment.

[47] At para. 9 of Zaifman van Rensburg, J.A. stated that motions to extend time to appeal should not devolve into a full argument on the merits of the appeal as it is not the place of a single judge on a motion to extend time to consider the full merits of an appeal that only a full panel of the court would have the authority to determine. In my view the principle also applies in the context of an appeal to a single judge of the Superior Court of Justice from an order of a judge of the Ontario Court of Justice.

[48] A review of the grounds of appeal and the Reasons of Baker, J. reveals that the merits of the appeal are not sufficiently “compelling” to tip the balance against the overwhelming prejudice and justice of the case considerations discussed above.

Dispositions

[49] In respect of the mother’s application under s. 140 of the Courts of Justice Act in file no. CV-22-15 it is ordered as follows:

a) The respondent Benjamin House is declared to be a vexatious litigant; and

b) No further proceeding may be instituted by Benjamin House in any court without first obtaining leave of a judge of the Superior Court of Justice.

[50] The motion of the appellant Benjamin House in file no. FS-21-304-00AP for an order extending the time to perfect the appeal is dismissed.

Costs

[51] The parties are strongly encouraged to agree on the costs of the application in file no. CV-22-15 and the motion in file no. FS-21-304-00AP. If the parties are able to settle the issue of costs, counsel shall advise the court accordingly.

[52] If the parties cannot agree on costs, the mother may make written submissions as to costs of the application in file no. CV-22-15 and the motion in file no. FS-21-304-00AP within 21 days of the release of this Endorsement. The mother’s submissions may be combined but amounts of her claims for costs should be broken out between the two files. The father has 14 days after receipt of the mother’s submissions to respond. The mother has a further seven days to make reply submissions. All such written submissions are to be forwarded to me care of the Trial Coordinator at Brantford at the same email address used for the release of this Endorsement.

[53] The initial submissions of each side shall not exceed four (4) double-spaced pages, exclusive of Bills of Costs or Costs Outlines, and the reply submissions, if any, shall not exceed two (2) such pages.

[54] If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

[55] If either party does not intend to file costs submissions or reply costs submissions, that party is requested to advise the court accordingly.

D.A. Broad, J. Date: April 19, 2022