Court File and Parties

COURT FILE NO.: FS-19-12193 DATE: 2024/08/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anita Kim, Applicant AND: Adan McIntosh, Respondent

BEFORE: Somji J.

COUNSEL: Applicant, Self-Represented Respondent, Self-Represented Mary Reilly, OCL

IN WRITING: August 9, 2024

Endorsement

[1] The Respondent Adan McIntosh brought a motion on July 4, 2024 (“July 4th Motion”) in which he identifies 21 issues. The motion was served on both Ms. Kim and counsel for the Office of the Children’s Lawyer. Court staff provided Mr. McIntosh a motion hearing date of August 8, 2024, for the July 4th Motion.

[2] The July 4th Motion was brought while the parties were awaiting Engelking J’s decision on Mr. McIntosh’s Motion to Change the parenting regime as set out in the Final Order of Steele J on October 1, 2021. The OCL provided the parties and court with a report regarding the four children’s views and preferences for the Motion to Change. On July 12, 2024, Engelking J dismissed Mr. McIntosh’s Motion to Change (“Engelking decision”).

[3] Given Mr. McIntosh’s incessant litigation, Smith J had ordered on October 3, 2022, that Mr. McIntosh must seek leave with 30 days’ notice to bring any future motions before the court. In regard to Mr. McIntosh’s continued litigiousness, I note the recent comments made by Engelking J at para 52 of her decision:

Mr. McIntosh has also failed to act in the best interests of the children by engaging in constant, unending, unrelenting, often frivolous, and sometimes vexatious litigation. By doing so, he has taken away from Ms. Kim’s ability to meet the needs of the children, not only financially, but emotionally and physically. She is completely drained by five years of non-stop litigation.

[4] Mr. McIntosh sought to set aside Smith J’s Order requiring him to seek leave for every motion but it was denied by me on September 11, 2023: Kim v McIntosh, 2023 ONSC 5121 at paras 72 to 83; see also Endorsement of RSJ MacLeod April 12, 2024 at paras 6 and 9 and Engelking decision at paras 6 and 7. Consequently, Smith J’s Order remains in full force, and court staff are not to accept any materials from Mr. McIntosh unless it is a motion with 30 days notice to Ms. Kim for leave to bring a motion.

[5] Mr. McIntosh’s July 4th Motion seeks the following relief:

Relief Sought

1. An order to recuse Justices MacLeod, ACJ McWatt and CJ Morawetz.
2. An order to recuse Justice Somji.
3. An order to file a motion to object to the relocation of the children.
4. An order to allow the 8 weeks access from 2022 that was denied by the Applicant.
5. An order to schedule the Applicant's motion dated 31st May 2022.
6. An order to schedule the Hague Convention application for access that was filed in the Ontario Court of Justice in DFO-11-10128 and "tranversed" to the Superior Court on 20th October 2020.
7. An order for the Responding Party to provide a copy of invoices of her legal bills to Oriana Pollitt.
8. An order for recordings to be provided to an authorized transcriptionist for the appearances before Justice Paisley on 5th and 12th September 2019 and before Justice Sutherland on 4th July 2022.
9. An order to set aside the endorsement of Justice Myers dated 30th August 2019 and Justice Paisley dated 12th September 2019 for fraud under the Family Law Rules 25(19).
10. An order to set aside the order of Justice Nakonechny dated 19th December 2019 for fraud under FLR 25(19)(a).
11. An order to set aside the order of Justice Shore dated 13th August 2020 under FLR 25(19)(a).
12. An order to set aside the order of Justice Shore dated 27th January 2021 under FLR 25(19)(a).
13. An order to set aside the order of Justice Shore dated 4th May 2021 for fraud under FLR 25(19)(a).
14. An order to set aside the order of Justice Steele dated 1st October 2021 under FLR 25(19).
15. An order to set aside the order of Justice Hood dated 2nd December 2021.
16. An order to set aside the endorsements of Justices Boucher and Corkery dated 11th and 26th April 2022.
17. An order to set aside the order of Justice Corthorn 25th November 2022.
18. An order to set aside the endorsement of Justice Somji dated 11th September 2023.
19. An order to set aside the endorsement of Justice MacLeod dated 12th April 2024
20. An order to dismiss the motion of Ms. Kim dated 27th June 2024.
21. An order for leave to schedule the above motions where required.

[6] Mr. McIntosh states at item 21 that he seeks an order for leave to schedule the above-noted motions “where required.” However, it is clear from Smith J’s Order that any and all motions brought by Mr. McIntosh require leave of the court.

[7] Having reviewed his Notice of Motion and supporting materials, Mr. McIntosh’s request for leave to bring a motion for the 20 issues identified is declined for the following reasons.

Reasons for Dismissal

[8] First, RSJ MacLeod ordered on April 12, 2024, that “No further motions are to be brought pending the return of the motion to change.” Endorsement RSJ C. MacLeod April 12, 2024 at para 12; Engelking decision at para 11. Nonetheless, Mr. McIntosh proceeded to file the July 4th Motion rather than await the decision which addressed some of the same issues he now raises relating to the current parenting regime.

[9] Second, many of the issues identified in the July 4th Motion have already been adjudicated and decided. The following are just some examples:

a. Mr. McIntosh seeks to have Justice Steele’s Final Order set aside (item #14). Justice Steele’s decision and Final Order were appealed, and the Ontario Court of Appeal denied the appeal: Kim v McIntosh, 2023 ONCA 356. The parenting issues in the Final Order were also the primary focus of Engelking J’s decision of July 12, 2024. b. Mr. McIntosh seeks an order (item #2) that I be recused which was effectively denied by RSJ MacLeod as recently as April 12, 2024. RSJ MacLeod indicated that this same motion was not properly brought before the court and any procedural motions would continue to be referred to me: Endorsement RSJ C. MacLeod April 12, 2024 at paras 9 and 11. c. Mr. McIntosh seeks an order for recordings to be provided to an authorized transcriptionist for the appearances before Justice Paisley on 5th and 12th September 2019 and before Justice Sutherland on 4th July 2022 (item #8). This was already ruled on by me. I order the transcripts could be released and that Mr. McIntosh would pay for the costs if he wanted them: Endorsement Justice N. Somji March 28, 2023. d. Mr. McIntosh seeks an order that ACJ McWatt and CJ Morawetz be recused (item #1). He previously brought this same motion before me and then subsequently withdrew the motion: Endorsement Justice N. Somji June 12, 2024 at para 5.

[10] It is not for the court to have to decipher which issues have already been adjudicated and ruled upon. If Mr. McIntosh seeks leave to bring a motion on any issue, he must identify if the motion has been previously made by him and/or decided and identify what steps, if any, have been taken to appeal that decision.

[11] Third, in support of the July 4th Motion, Mr. McIntosh relies on a single affidavit dated March 4, 2024 (“Affidavit”). The Affidavit is a chronological recantation of events between him and Ms. Kim dating back to 2011. Much of the information relates to facts which would have been relevant to the Motion to Change before Engelking J which was recently heard and decided. The Affidavit does not delineate what facts are relevant for which of the 20 issues for which he seeks relief. The supporting Affidavit in its current form is insufficient to enable the court to even determine the question of leave on these 20 issues.

[12] For these reasons Mr. McIntosh’s July 4th Motion is dismissed.

[13] On Sunday August 4, 2024, Mr. McIntosh sent an email to Court Registry stating:

Please note, I have a motion scheduled for 8th August for which I will not be filing a confirmation and do not intend to proceed with at this time. The other party has not filed any materials and I intend to refile this motion to give her another chance to respond.

[14] Should Mr. McIntosh decide to refile this motion, he is required to comply strictly with Smith J’s Order and request leave of the court with 30 day notice to Ms. Kim. Ms. Kim need not respond to the leave application if she does not wish to and may await the court’s decision to determine if leave is granted and if so, on which issues, before filing responding materials. As noted by Engelking J, Ms. Kim has been depleted by Mr. McIntosh’s litigation and is focused on trying to raise their four children with almost no financial support from Mr. McIntosh.

[15] Furthermore, as per Smith J’s Order, Mr. McIntosh is not to be granted any motion hearing dates by court staff until leave is granted for the motion.

[16] Finally, should Mr. McIntosh file any further motions, he is advised to file his materials in accordance with the above-noted comments and refer to both this endorsement and Engelking J’s decision.

Somji J. Date: August 9, 2024