COURT FILE NO.: FS-19-0038-0000 DATE: 2024 09 18

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y7

RE: C.C. AND: S.C.

BEFORE: Conlan J.

COUNSEL: Self-Represented, Applicant Joelle Ruskin, for the Respondent

HEARD: September 10, 2024

ENDORSEMENT ON MOTION

Introduction

[1] On September 10, 2024, this Court heard a regular (short) motion brought by the Respondent father, S.C., that Notice of Motion dated June 3, 2024. The father filed affidavit material, a factum, and a draft final order. The self-represented Applicant mother, C.C., did not file any materials on the motion, but this Court permitted C.C. to make oral submissions nevertheless.

[2] Succinctly put, the father’s motion seeks an order that the mother shall not take any further steps in the within proceeding, or commence a new proceeding related to the breakdown of the marriage between the parties, whether related to parenting or financial issues, until she (i) has paid the costs ordered by Regional Senior Justice Ricchetti (as His Honour then was) on June 22, 2023 ($6981.14) and has paid any other costs orders made after June 3, 2024, and (ii) has obtained leave of the court (with a mechanism set out for obtaining that leave, with conditions attached thereto).

Order of the Court

[3] For the reasons that follow, the father’s motion is granted. The draft final order filed on behalf of the father, found at Case Center page B4779, shall issue, clauses 1 through 6.

[4] With regard to clause 7, dealing with costs, this Court makes no determination at this stage. The issue of costs shall be dealt with in writing. Within thirty calendar days after the date of this Endorsement, the father shall file brief written submissions on costs, including a Bill of Costs, which submissions (minus attachments) shall not exceed two pages in length. Within fifteen calendar days after her receipt of the father’s submissions, the mother shall file her written submissions on costs, which submissions (minus attachments) shall not exceed two pages in length. There shall be no reply permitted by the father. All of the written submissions on costs shall be served, filed with the court, and uploaded to Case Center.

Reasons for the Order

The History of this Case

[5] This case has a long and protracted history to it, dating back well more than three years. As the result of a Final Order made by Justice Chozik, following a trial, and subsequent orders, for a few years now, the father has had decision-making responsibility for, primary residency of, and most of the parenting time with the child that the parties share. Although there have been periods when some or all of the mother’s parenting time with the child has been suspended, the current status quo is that the mother has regular in-person parenting time with the child.

[6] It is not the intention of this Court to be mean-spirited towards the mother. It is equally not my intention to rehash adverse findings that have already been made against the mother. Given the extraordinary nature of the Order being made by this Court, however, it is necessary to set out a few items.

[7] In September 2021, three years ago, Justice Chozik, in Her Honour’s costs Endorsement after trial, labelled the mother’s litigation conduct as “deplorable”, “unreasonable”, “egregious”, including the making of “false” claims against the father, making “unfounded allegations of abuse” against the father, and making claims that were “objectively incredible and unreliable”.

[8] In December 2021, this Court described the mother as being “intransigent” and continuing to make “wild, unfounded, and harmful allegations against the father”, never mind the “litany of unsolicited and improper correspondence sent by the mother…to the Court”.

[9] In June 2022, this Court took the unusual step of ordering full indemnity costs against the mother, referring in part to the mother’s “history of contemptible and shameful conduct”, having brought another motion that had “no merit” and was brought in “bad faith”, illustrative of a pattern on the part of the mother of “litigating by wildfire”.

[10] In August 2022, Justice Chown commented on the mother’s unreasonable conduct towards the trial coordinator’s office.

[11] In September 2022, this Court described the mother’s conduct as “heartbreaking”, having initiated yet another meritless motion that effectively “dashed” the fervent hope of the Court that the decision to reinstate parenting time between the mother and the child would be a positive development in the case.

[12] In October 2022, this Court once again ordered full indemnity costs against the mother, citing her persistent litigation conduct that was “undoubtedly worthy of strong condemnation”.

[13] In December 2022, this Court referred to the mother having made more baseless accusations of child neglect against the father and accusing all authorities, including the child welfare agency, as being “corrupted”.

[14] In April 2023, this Court observed that the mother had not complied with the Court’s procedural Endorsement dated December 16, 2022.

[15] In May 2023, then Regional Senior Justice (“RSJ”) Ricchetti dealt with a motion made by the mother to have the case assigned to a judge other than myself. RSJ Ricchetti described the myriad of issues that had arisen in the proceeding, since the Final Order of Justice Chozik made after trial, in terms of substantial non-compliance by the mother. The mother had repeatedly violated the said Final Order, forcing Justice Chown to suspend her parenting time altogether (temporarily) in June 2021. RSJ Ricchetti described how repeated allegations of abuse by the mother against the father had been unverified by the police and unsubstantiated by the child welfare agency. RSJ Ricchetti observed that “[i]t is the [mother] who has continued with her inappropriate behaviour despite court orders”. RSJ Ricchetti rejected the mother’s recusal motion and also dismissed her request to bring an “urgent” motion to vary the existing parenting order.

[16] In June 2023, dealing with costs, RSJ Ricchetti explained that the mother was already in breach of nine costs order totaling just under $500,000.00 and also in breach of a court order to pay $221,129.00 (the balance of the costs orders after an off-set was permitted between the costs owed by the mother and spousal support payable by the father to the mother) in monthly instalments. RSJ Ricchetti ordered full indemnity costs against the mother for the recusal motion, “[g]iven the history of this matter, the numerous motions, the unmeritorious motion, mounting unpaid cost orders” and the need to “send a message to the [mother] that these meritless motions need to stop or there will be financial consequences”.

[17] I pause here to note that the mother has not paid the costs ordered by RSJ Ricchetti, just under $7000.00.

[18] In March 2024, Justice Kurz heard a motion brought without notice by the mother. His Honour found that there was no justification for bringing the motion ex parte. His Honour found that the motion was not urgent and was riddled with improper hearsay evidence. Justice Kurz observed that the case had been the subject of 66 endorsements made by numerous judges. His Honour dismissed the mother’s motion.

[19] The mother then filed two further motions, one dated May 8, 2024 and the other dated June 4, 2024. In its Endorsement dated July 26, 2024, this Court dismissed as abandoned the mother’s May 8, 2024 motion. The Court did not dismiss her later motion but ordered that the mother had to take certain steps before that motion could be heard, including serving and filing a draft amended notice of motion.

[20] The mother has not complied with this Court’s Endorsement dated July 26, 2024. Instead, she filed two further motions in August 2024.

The Time has come for the Court to make a Serious, Extraordinary Order

[21] In retrospect, I think I must confess that I have extended too much patience towards the mother. In the best interests of the child, I am of the view that something extraordinary is now required. That something extraordinary is the Order of this Court outlined above. Contrary to what the mother fears, this Order does not “muzzle” the mother. Rather, it strikes the appropriate balance between maintaining respect for the administration of justice and permitting the mother to be heard.

[22] On March 6, 2024, the Ontario Government’s Bill 157, the Enhancing Access to Justice Act, 2024, received Royal Assent, amending subsection 140(1) of the Courts of Justice Act (“CJA”), R.S.O. 1990, c. C.43, dealing with vexatious proceedings. In my view, that Bill was likely a response to, in part, a series of recent Ontario family law cases dealing with vexatious litigants, including but not limited to Austin v. House, 2022 ONSC 2349, appeal dismissed at 2023 ONCA 55.

[23] The Order being made by this Court is fully justified by what is the new subsection 140(1) CJA, which provides that this Court may make an order that includes the term, at clause 1, that no further proceeding may be instituted by the mother in any court, except by leave of a judge of the Superior Court of Justice, where this Court is satisfied that the mother has persistently and without reasonable grounds instituted vexatious proceedings or conducted a proceeding in a vexatious manner.

[24] I am so satisfied. The history of this case would reveal no other reasonable conclusion.

[25] But, Bill 157 is not yet proclaimed in force – that will be on October 15, 2024.

[26] Thus, the Order made by this Court is grounded in subrule 1(8) of the Family Law Rules. Clearly, the mother has violated numerous orders in this case – costs orders, procedural orders, and substantive orders. It is my view that the Order made by this Court is necessary for a just determination of the matter. Finally, it is my view that, although subrule 1(8) is not exhaustive in its language, the Order being made by this Court is consistent with, although an extension of, clause (e) of subrule 1(8) – an order that the mother (a party to the proceeding) is not entitled to any further orders from the court unless the court orders otherwise.

[27] The jurisprudence is clear that, in assessing the appropriateness of the court’s reliance on subrule 1(8), it is important to note the wide discretion that the court has to make orders that are necessary to protect the integrity of the administration of justice, taking into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party. Hughes v. Hughes, at paragraph 17; Price v. Putman, 2018 ONCJ 86, at paragraphs 34-37.

[28] Subrule 1(8) recognizes, in part, the offensiveness of allowing a party to seek and obtain relief while in breach of a court order. Pye v. Pye, 2017 ONSC 6032, at paragraphs 66-67.

[29] Of course, every case is different, and there are instances where the application of subrule 1(8), and the making of an order such as the one being made by this Court herein, is too draconian. In our situation, however, I see nothing else that might suffice. The mother has shown an “all-too-common casual approach to compliance with court orders”, and repeatedly so, to the detriment of the child. Gordon v. Starr, 42 R.F.L. (6th) 366, at paragraph 23.

[30] In addition to subrule 1(8), I am satisfied that the Order made by this Court is justified by Rule 2 and subrule 14(21) of the Family Law Rules. Dealing with a case justly includes being fair, procedurally, to all parties, saving time and expense, and being cognizant that there are other cases that need the court’s resources besides this one – subrule 2(3). The Order made by this Court does all of those things. Rule 2 has been specifically relied on by other judges to make orders that require certain criteria to be satisfied before a party may initiate a further proceeding or take a further step in the current proceeding. Robertson v. McKenzie, 2020 ONSC 1747, at paragraph 138 and following; V.B. v. M.M., 2016 ONCJ 98, at paragraphs 108-109.

[31] In terms of subrule 14(21), I am satisfied that the mother has abused the process of the court by making numerous motions without merit, and, thus, this Court has the discretion to order that the mother not make any other motions in the case without the permission of the court, which is precisely what this Court has ordered. In fact, the Order being made herein, including the conditions attached to the mother seeking leave, is quite similar to that made by Justice Curtis in Watson v. Watson, 2023 ONCJ 435, where, as in our case, there were several motions that had been brought without merit and repeated non-compliance with court orders, justifying the use of subrule 14(21).

[32] Frankly, the mother is on the same footing as the litigant that appeared before Justice Pazaratz in Izyuk v. Bilousov, 2015 ONSC 3684, both having demonstrated a consistent pattern of deception and reckless litigation, leading Justice Pazaratz to, among other things, make an order for security for costs under subrule 24(13) of the Family Law Rules, clause 4 in particular. Reference should also be had to the decision in Bragg v. Bruyere, 2007 ONCJ 515, 45 R.F.L. (6th) 226, which provides additional authority for the Order made by this Court.

Conclusion

[33] For these reasons, the mother will not be “muzzled”, and she will have continued access to the court, but that access will not be completely unfettered.

[34] Open access to justice is a hallmark of the Canadian justice system. It ought not to be interfered with lightly. Where a litigant persists in grossly unreasonable litigation conduct, however, with no meaningful consequences except harsh words from judges and pieces of paper that say that litigant owes a lot of money in costs to the other side, it makes a mockery of the justice system. It actually turns the principle of access to justice on its head, leaving other families to struggle to find court time and a child, this child, in a perpetual state of uncertainty.

[35] It is not fair.

[36] The father’s motion is granted, and the draft order filed shall issue, subject to the matter of costs.

Conlan J. Released: September 18, 2024

COURT FILE NO.: FS-19-0038-0000 DATE: 2024 09 18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: C.C. – and – S.C. Endorsement on Motion Conlan J. Released: September 18, 2024