DATE: 20060214
DOCKET: C42537 M32086
COURT OF APPEAL FOR ONTARIO
CRONK, LANG and JURIANSZ JJ.A.
B E T W E E N :
BESIME KALLABA
Patrick Di Monte, for the appellant
Applicant
(Appellant)
- and -
BASHKIM (BRIAN) BYLYKBASHI
D. Smith, for the respondent
Respondent
(Respondent)
Heard: September 9, 2005
On appeal from the order of Justice Harry J. Keenan of the Superior Court of Justice dated September 17, 2004, reported at [2004] O.J. No. 4629.
CRONK AND JURIANSZ JJ.A.:
I. INTRODUCTION
[1] The appellant Besime Kallaba appeals from the order of Keenan J. of the Superior Court of Justice dated September 17, 2004 dismissing her application for spousal support from her former husband, the respondent Bashkim (Brian) Bylykbashi, (the “support dismissal order”), and granting relief against her under s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). The latter order prohibits the appellant from either instituting any further proceeding or continuing any proceeding previously instituted by her in any court as against the respondent concerning any matter arising out of their previous marriage, except by leave of a judge of the Superior Court of Justice (the “vexatious litigant order”).
[2] The appellant filed a notice of appeal from the motion judge’s decision on October 15, 2004. However, she did not first obtain leave to appeal from a judge of the Superior Court of Justice or from this court. She contends, on various grounds, that leave to appeal is not required and that this court has jurisdiction to hear her appeal under s. 6(1)(b) of the CJA.
[3] The respondent moves to quash or stay the appellant’s appeal on the ground that the appellant was required to seek and failed to obtain leave to appeal. Should his motion be dismissed, he opposes the appellant’s appeal on the merits.
[4] For the reasons that follow, we would dismiss the respondent’s motion to quash or stay the appellant’s appeal. We would allow the appellant’s appeal from the vexatious litigant order, but would dismiss her appeal from the support dismissal order.
II. BACKGROUND
[5] The parties were married in October 1984, separated in February 1994 and divorced in 1998. There are two children of the marriage, a daughter, born on November 7, 1988, and a son, born on April 23, 1990. The children reside with the respondent. Both parties remarried, although the appellant is now divorced from her second husband.
[6] Following their separation, the parties became embroiled in protracted litigation concerning, primarily, custody of and access to the children of the marriage and child support. Eventually, after numerous court appearances and interlocutory proceedings, by consent order dated October 15, 1998, Cohen J. of the Ontario Court (Provincial Division) awarded custody of the children to the respondent, granted the appellant liberal and generous access to the children at specified times and under certain conditions, and ordered the appellant to pay monthly child support to the respondent (the “Consent Order”).
[7] Regrettably, the Consent Order did not bring closure to the matrimonial litigation. After the Consent Order was issued, the appellant initiated contempt proceedings against the respondent concerning her access rights and sought to vary her child support obligations and to obtain an order expunging her accumulated arrears in child support, among other matters. By July 2004, the parties had been involved in litigation for more than ten years. By mid-2002, the respondent was self-represented. In contrast, the appellant appears to have been represented by counsel at most court appearances.
[8] On November 6, 2003, the appellant moved for court orders expunging all arrears of child support and varying the Consent Order to eliminate her ongoing child support obligations pending further order of the court. This motion appears to have been superseded by an application commenced by the appellant on November 21, 2003, in which she sought access to the children of the marriage, the return of a contempt motion previously brought by her against the respondent concerning her access to the children, and a variation of the Consent Order to rescind arrears of child support and to eliminate any future obligation to pay child support. She also sought, for the first time, an award of spousal support.
[9] On January 19, 2004, the respondent (who, by then, was self-represented) filed an answer to the appellant’s application and, in addition, advanced claims of his own. In his answer, he asserted that the appellant’s contempt motion was “a vexatious claim by the [appellant] to harass and annoy me and cause me financial hardship”. He also stated:
The [appellant] is filing the Application to be a nuisance. Abuse of me and the justice system must stop.
There have been (30) court appearances during the past (10) years. …No significant change has occurred to warrant the continued harassment against me by the [appellant].
The [appellant] has abused the justice system and costs have been ordered. The [appellant] refuses to pay those costs.
The [appellant] refuses to abide by the court order and pay costs as ordered and therefore the [appellant] should not be entitled to access the services of the court for ongoing abuse against the Respondent.
The [appellant] has been uncooperative and disagreeable by not abiding by the court order when the order does not please her. In fairness to me and the children the legal battle must finally end.
[10] In his answer to the appellant’s application, the respondent sought various relief, including orders that the appellant “must seek leave of the court prior to bringing any further motions, action in this case before the court [sic]” and that the appellant “be fined an amount of $250.00 for each and every future incident pertaining to this case of harassment, threats, or violence, causing a disturbance or trespassing”.
[11] On July 16, 2004, the respondent brought a motion under the Family Law Rules, O. Reg. 114/99, in which he sought orders for security for costs in the sum of $25,000; striking the appellant’s pleadings; requiring the appellant to “seek leave of the court prior to filing”; costs in the amount of $15,000; and damages from the appellant “for bad behaviour” in the sum of $10,000.
[12] In his motion form, the respondent stated:
I am asking the court for an end to litigation after more than thirty-five (35) appearances over the past ten (10) years. In fairness to me and my children, who have resided with me since 1994 there must be an end to the [appellant’s] vexatious litigation against me… I seek the court’s assistance to put a stop to this battle and allow my family to move forward and hopefully the [appellant] will also find some direction for her life. This harassment against me must stop.
[13] In his affidavit sworn in support of his motion, the respondent detailed the history of the extensive litigation between the parties and the appellant’s alleged failure to make adequate disclosure of her financial circumstances, despite court orders requiring her to do so. He described the appellant’s spousal support claim as “vexatious” and stated, “The [appellant] is determined to pursue litigation in family court as a method of harassment against me.” As well, when outlining the basis for his request for an order for security for costs, the respondent stated:
The [appellant] displays little respect for the justice system. Security for costs will prevent further vexatious and frivolous litigation allowing my family to move forward with our lives and hopefully allow the [appellant] to direct her life and focus away from me.
The need for security for costs order [sic] against the [appellant] will save the justice system countless hours of court time by preventing frivolous litigation.
[14] These matters eventually came on for hearing before the motion judge on July 30, 2004. On that day, the appellant was out of the country but she appeared in court through counsel. The respondent appeared in person. As a result of the appellant’s absence from Canada, the motion judge adjourned the proceedings to September 13, 2004.
[15] The materials before the motion judge on the September 13 return of the proceedings were in the form of a continuing record that included the appellant’s motion dated November 6, 2003, her application dated November 21, 2003, the respondent’s January 19, 2004 answer to the appellant’s motion and application, and the respondent’s motion under the Family Law Rules dated July 16, 2004, described above.
[16] In his reasons for decision dated September 17, 2004, the motion judge said:
[14] The ex-husband reviewed the history of this litiga-tion. His material lists proceedings going as far back as October 1994. Most of the proceedings brought by the ex-wife were related to her application for custody and child support. After protracted litigation and numerous court appearances, custody of the children was given to the ex-husband.
[15] Meanwhile, the ex-wife had remarried in what appears to be comfortable circumstances. In addition, she had a history of self-supporting employment. I have no satisfactory evidence as to the outcome of her later marriage and no satisfactory evidence that she is in need of support. It appears that she has continued the claim against her ex-husband and instituted a claim for spousal support in order to harass him.
[16] Ex-husband fears that whatever order is made regarding the issue of spousal support, the history of the proceedings leads to the conclusion that it will not be the end of the litigation. He contends that the ex-wife will continue to harass him with the same or other court proceedings. He seeks this order that she post security to provide some assurance that she may be dissuaded from commencing further action. He told me that this litigation had already cost him close to $100,000 and that he can no longer afford the luxury of counsel.
[17] The motion judge then reviewed ss. 140(1) and 140(5) of the CJA and concluded:
[19] I am of the view that the pattern of conduct of the ex-wife over the years exhibits an interest to harass the ex- husband and to interfere with his intention to reshape his life and that of his family. She has conducted interminable and inconsistent proceedings to that end. Even if I am wrong in holding that her conduct falls within sec. 140(1), I would invoke sec. 140(5) and stay any proceeding by her as an abuse of process or as an extension of her pattern of interference with his efforts to regularize the lives of his children and his family.
[20] Accordingly, I order that the ex-husband is not to pay any spousal support to the ex-wife and her application is dismissed.
[18] By supplementary reasons dated September 21 and September 29, 2004, the motion judge ordered that the appellant’s arrears of child support be expunged and that she be relieved from any ongoing obligation to pay child support.
[19] The appellant appeals the vexatious litigant and support dismissal orders of the motion judge. The respondent, in turn, moves to quash the appeal on the basis that the appellant was required to seek and failed to obtain leave to appeal from a judge of the Superior Court of Justice. In the alternative, he seeks an order staying the appeal until the appellant obtains leave to appeal. Although the respondent also argued in his factum that the appeal should be dismissed for delay, this was not pursued in oral argument.
III. STATUTORY PROVISIONS
[20] The following provisions of the CJA are relevant :
s.1 Definitions – In this Act,
“application” means a civil proceeding that is commenced by notice of application or by application;
“motion” means a motion in a proceeding or an intended proceeding;
s.6(1) Court of Appeal jurisdiction – An appeal lies to the Court of Appeal from,
(b) a final order of a judge of the Superior Court of Justice, except…an order from which an appeal lies to the Divisional Court under another Act.
s.19(1) Divisional Court jurisdiction – An appeal lies to the Divisional Court from,
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court;
s. 138 Multiplicity of Proceedings – As far as possible, multiplicity of legal proceedings shall be avoided.
s.140(1) Vexatious litigant – 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.
s.140(5) Abuse of process – Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.
IV. ISSUES
[21] There is one issue on the respondent’s motion, namely, whether the appellant’s appeal should be quashed or stayed because the appellant failed to obtain leave to appeal from the vexatious litigant and support dismissal orders. If this motion is dismissed, the following issues arise on appeal:
(1) Did the motion judge err by making the vexatious litigant order?
(2) Did the motion judge err by granting the support dismissal order?
V. ANALYSIS
A. Motion to Quash or Stay the Appeal
[22] The respondent argues that the effect of the vexatious litigant order is to require that the appellant obtain leave to appeal any part of the motion judge’s order.
[23] The appellant submits that the word “proceeding” under s. 140(1) of the CJA does not include an appeal to this court, with the result that the vexatious litigant order presents no bar to this appeal. She also maintains that the vexatious litigant order is final in nature and, therefore, is appealable as of right to this court under s. 6(1)(b) of the CJA. We agree with the latter submission. Accordingly, the respondent’s motion to quash or stay the appeal based on the vexatious litigant order must be dismissed.
(1) Scope of the Vexatious Litigant Order
[24] We reject the appellant’s submission that the word “proceeding” in s. 140(1) of the CJA does not include appeals to this court.
[25] The vexatious litigant order is cast in broad language. The motion judge directed that no further proceedings be instituted by the appellant as against the respondent with respect to “any matter arising out of their previous marriage in any court” and that “any such proceeding previously instituted” by the appellant “in any court” not be continued, except by leave of a judge of the Superior Court of Justice. By its terms, therefore, the vexatious litigant order encompasses appeals to this or another court.
[26] In addition, this court has previously interpreted the word “proceeding” in s. 140(1) of the CJA as extending to appeals in this court. In Varma v. Rozenberg, [1998] O.J. No. 4183 the appellant appealed from seven court orders striking out his statements of claim in seven actions on the grounds that his pleadings did not disclose a reasonable cause of action and were frivolous, vexatious or an abuse of process. A vexatious litigant order had been made against him pursuant to s. 140(1) of the CJA. This court held at para. 5:
The [vexatious litigant order] stands until such time as it is reversed or stayed. Accordingly, it is our view that [this] order precludes Mr. Varma from proceeding with the seven appeals before this court unless he obtains leave to do so. We are also satisfied that Festeryga J. had the power under s. 140(1) to make an order affecting proceedings before the Court of Appeal. In our opinion, “proceeding…in any court” in s. 140(1)(c), includes a proceeding in the Court of Appeal, and “proceeding” includes an appeal [citation omitted and emphasis added].
This is dispositive of the appellant’s argument concerning the scope of the vexatious litigant order.
(2) Character of the Vexatious Litigant Order
[27] We agree with the appellant’s contention that the vexatious litigant order is a final order, appealable as of right to this court under s. 6(1)(b) of the CJA.
[28] Section 6(1) of the CJA defines when an appeal lies to this court. Section 6(1)(b) provides for an appeal to this court, as of right, from a final order of a judge of the Superior Court of Justice that is not appealable to the Divisional Court. In our opinion, it is clear that a vexatious litigant order is such a final order. Absent the reversal or a stay of such an order, or the granting of leave to initiate or continue proceedings notwithstanding the order, a vexatious litigant order finally determines the right of the affected litigant to engage in further litigation.
[29] The issue, then, is whether a vexatious litigant order operates to preclude an appeal therefrom to this court, absent leave to appeal. We do not think that the effect of a s. 140(1) order extends so far as to require leave to appeal from the very order that declares a person to be a vexatious litigant and restricts his or her right to access the courts.
[30] The purpose of s. 140(1) of the CJA is to codify the inherent jurisdiction of the Superior Court to control its own process and to prevent abuses of that process by authorizing the judicial restriction, in defined circumstances, of a litigant’s right to access the courts.
[31] However, a s. 140(1) order is an extraordinary remedy that alters a person’s right to access the courts. Such an order may be granted in error. For example, a s. 140(1) order may not be supported by the evidential record. It may have been made by a judge mistakenly acting without jurisdiction, in breach of the requirements of natural justice or on incorrect legal principles. In these circumstances, to deny an affected litigant his or her appeal as of right under s. 6(1)(b) of the CJA from a vexatious litigant order could result in fundamental unfairness. This should not be countenanced absent clear legislative intent to the contrary. Such intent is not evident from the language of s. 140(1) of the CJA.
[32] In this case, the vexatious litigant order purports by its terms to apply to any proceeding relating to the parties’ marriage initiated or pending in any court. In our view, therefore, it is necessary to read it as suspending the operation of s. 6(1)(b) of the CJA except where the proceeding sought to be initiated is an appeal from the vexatious litigant order itself.
[33] This interpretation of the combined effect of ss. 140(1) and 6(1)(b) of the CJA accords with the established practice of this court. This court generally will require leave to appeal where a litigant seeks to initiate or continue litigation after a vexatious litigant order has been made against the litigant. However, no case was cited in argument before us in support of the proposition that leave to appeal is similarly required when the proposed appeal is from a vexatious litigant order itself. To the contrary, this court has entertained appeals from vexatious litigant orders without the requirement of leave to appeal.
[34] We conclude that leave to appeal the vexatious litigant order was not required. Accordingly, it presents no bar to the determination of the appeal therefrom on the merits.
C. Appeal
(1) Appeal from Vexatious Litigant Order
(i) Manner of Seeking Relief Under Section 140(1)
of the CJA
[35] The appellant challenges the merits of the vexatious litigant order on two main grounds. She contends that the motion judge had no jurisdiction to make the vexatious litigant order because the relief sought by the respondent was sought by motion rather than “on application”. She also argues that the motion judge erred by granting the vexatious litigant order on his own initiative, without request therefor by the respondent and without the appellant being provided with a meaningful opportunity to oppose such relief.
[36] A vexatious litigant order may be made under s. 140(1) of the CJA by a judge of the Superior Court of Justice where the judge is satisfied, “on application”, that a person has persistently and without reasonable grounds instituted vexatious proceedings, or conducted a proceeding in a vexatious manner, in any court. The word “application” is defined under s. 1 of the CJA as “a civil proceeding that is commenced by notice of application or by application”. In contrast, the word “motion” is defined under s.1 as “a motion in a proceeding or an intended proceeding”.
[37] Given these definitions and the use in s. 140(1) of the CJA of the phrase “on application”, the appellant argues that a s. 140(1) order is available in a civil proceeding only where such relief is sought by formal originating notice of application or application. It is undisputed that no formal application, in the sense of an originating process, was brought by the respondent.
[38] The determination of the meaning of the phrase “on application” in s. 140(1) of the CJA must be guided by the modern approach to statutory interpretation set out by the Supreme Court of Canada in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26 and Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21. Thus, the words “on application” as they appear in s. 140(1) of the CJA must be interpreted according to their ordinary and grammatical sense, consistent with the scheme and object of the CJA, the purpose of s. 140(1) and the intention of the Legislature.
[39] The CJA is comprehensive legislation that establishes the structure of the courts in Ontario, defines their jurisdiction and regulates their proceedings. In Ontario, s. 10 of the Interpretation Act, R.S.O. 1990, c. I.11 provides:
- Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.
[40] As we have said, the remedial purpose of s. 140(1) of the CJA is to prevent abuse of the court’s process. In Ballentine v. Ballentine (2003), 65 O.R. (3d) 481 this court emphasized the important purpose of s. 140(1) in matrimonial litigation (at para. 39):
It allows the court to make an order prohibiting a person who has persistently and unreasonably instituted vexatious litigation from instituting further legal proceedings without leave of the court. This is particularly important in family law matters, given the availability of variation orders for support and custody….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….Accordingly, initiating new court proceedings could become a form of harassment of one’s former spouse. Section 140 of the CJA is a mechanism to prevent such abuse [citations omitted].
[41] Given this purpose of s. 140(1) of the CJA, the respondent essentially argues that the availability of a vexatious litigant order should not turn on formalistic or technical distinctions between motions and applications. On this view, the purpose of s. 140(1) of the CJA might best be fostered by a liberal interpretation of the phrase “on application” that contemplates the availability of a vexatious litigant order where such relief is sought by a party before the court and where, having regard to the litigation conduct of the person against whom the order is sought, the interests of the administration of justice and fairness to the parties require such an order.
[42] However, on this record, it is unnecessary to determine whether s. 140(1) of the CJA could attract such a liberal and remedial construction in a proper case. Based on the conduct of the proceedings before the motion judge, we are persuaded that the appellant did not receive a fair hearing on the issue of whether a vexatious litigant order should be made against her. We turn now to this issue.
(ii) Hearing Fairness
[43] The appellant’s contempt motion and her application for spousal support and other relief were initiated in November 2003. In his answer to those proceedings, the respondent sought an order obliging the appellant to seek leave of the court “prior to bringing any further motions, action in this case before the court [sic]”. In his own motion dated July 16, 2004, the respondent sought an order that “the [appellant] must seek leave of the court prior to filing” and an order putting “an end to the [appellant’s] vexatious litigation” and putting “a stop to this battle” and “this harassment”.
[44] The respondent was self-represented when he prepared his answer to the appellant’s motion and application and when he prepared his own motion, and at the proceedings before the motion judge. This, of course, does not relieve him from the obligation to satisfy the procedural requirements of the applicable rules of court, including pleadings requirements. In this case, the respondent’s materials indicated that he was seeking a court order to end what he alleged was the “abuse” and “harassment” of him and of “the justice system” by the appellant. He stated that “there must be an end to the [appellant’s] vexatious litigation” [emphasis added] and he sought an order requiring the appellant to “seek leave of the court prior to filing”. Thus, although the respondent’s written materials did not expressly mention s. 140(1) of the CJA, the nature of the relief sought by him could be construed as including a request for relief of the type envisaged by that section.
[45] However, the transcript of the hearing before the motion judge does not support the conclusion that the prospect of a vexatious litigant order was a live issue, or that the merits of such an order were argued before the motion judge. To the contrary, it appears that this relief was fashioned by the motion judge without an indication by any of the persons who participated in the hearing that the matter was in issue, and without the benefit of the parties’ submissions on the matter. We say this for several reasons.
[46] First, the transcript clearly indicates that the parties identified the issues at the hearing before the motion judge as the respondent’s motion to dismiss the appellant’s spousal support claim, his request for an order for security for costs, and the appellant’s claim for an order expunging her child support arrears and eliminating any ongoing obligation to pay child support. It appears that the respondent was prepared to withdraw any claim regarding the appellant’s arrears in child support if an order for security for costs was granted against the appellant. In addition, the motion judge was told that there was no longer any dispute between the parties concerning custody and access issues.
[47] At no time, however, did either party advise the motion judge that an order declaring the appellant a vexatious litigant, or otherwise dismissing her application as an abuse of process, was in issue. Nor did the motion judge indicate that he was considering such relief, during either the oral hearing before him or prior to his release of his reasons for decision.
[48] Second, not surprisingly, the parties did not address such relief in their submissions. The respondent’s submissions, for the most part, concerned his request for an order for security for costs against the appellant. Counsel for the appellant, in turn, told the motion judge that the appellant’s application for spousal support was not before the motion judge and that the matters for adjudication were the respondent’s motion to dismiss the appellant’s application for spousal support, his motion for security for costs and the appellant’s application for relief concerning her past and ongoing child support obligations. The submissions of the appellant’s counsel focused on these issues. Although his submissions also touched briefly upon the history of the litigation between the parties, this occurred in the context of the respondent’s request for an order for security for costs, not in the context of addressing a vexatious litigant or abuse of process order.
[49] In summary, relief under ss.140(1) or 140(5) of the CJA was not identified by the parties or the motion judge as being in issue during the hearing, nor were the parties afforded an opportunity to make submissions concerning such relief.
[50] On this record, it may have been open to the motion judge to grant a vexatious litigant order against the appellant had such relief been clearly sought in proper form and addressed in submissions before the motion judge. However, this did not occur. Instead, no meaningful opportunity was provided to the appellant to be heard on the issue. At the very least, hearing fairness was impaired because the parties were not ‘on the same page’ concerning the relief that the motion judge believed was under consideration.
[51] In these circumstances, even if the respondent’s written materials before the motion judge are viewed as invoking relief in the nature of a s. 140(1) order, the appellant’s right to hearing fairness was compromised. On this ground alone, the vexatious litigant order cannot stand.
(2) Appeal from Support Dismissal Order
[52] As we have concluded that the vexatious litigant order must be set aside, it follows that it does not bar the appellant’s appeal from the support dismissal order and that this aspect of the appellant’s appeal must be determined on the merits.
[53] We would dismiss the appellant's appeal from the support dismissal order made on the respondent's motion. While there were a number of irregularities in the way the respondent’s motion came on before the motion judge, counsel for the appellant explained to us, and the transcript indicates, that the parties agreed that he sit as the motion judge to hear and determine a summary judgment motion by the respondent. On this appeal, neither side relied on any irregularity in the way the family law issues came on before the motion judge.
[54] As well, no issue was raised on this appeal as to whether the test for summary judgment under the Family Law Rules is different from that applicable under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Therefore, we have dealt with the appeal, assuming but without deciding, that there is no difference. An analysis of the textual differences between Rule 16 of the Family Law Rules and Rule 20 of the Rules of Civil Procedure, and their significance, if any, would best await a case where the issue is raised and argued. It is worth noting that this case does not affect the children of the marriage directly.
[55] The task of the motion judge was to determine whether there was a genuine issue about a material fact that required a trial of the issue of spousal support. In making that determination, he had to consider the evidence before him on the motion relating to the condition, means, needs and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to the support of either spouse. In assessing these factors, he had to keep in mind that any spousal support order that might be made should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[56] While a judge in a family law case exercises a large measure of discretion in balancing these factors, on a summary judgment motion the judge cannot weigh evidence or draw factual conclusions. The limited task of the motion judge in this case was to determine whether there existed a genuine issue as to materials facts that required a trial.
[57] As noted earlier, while the motion judge had the parties’ voluminous continuing record before him, the materials filed on the motions themselves included the appellant’s motion dated November 6, 2003, her application dated November 21, 2003, the respondent’s January 19, 2004 answer, and the respondent's motion dated July 16, 2004. The appellant did not file any materials in response to the respondent's motion.
[58] The materials filed indicate that the parties disagreed about many things. However, a "genuine issue for trial" must relate to a material fact or facts. A disputed fact, the existence or non-existence of which will not affect the result, does not raise a genuine issue for trial.
[59] We begin the analysis with the observation that the appellant is correct that it was not open to the motion judge to conclude that her application could not succeed simply because it was made some 10 years after the parties’ separation or because she had subsequently married and divorced.
[60] The appellant in her petition for divorce indicated, “I am not claiming any spousal support…, and confirm I do not wish to claim aforementioned claims at this time.” Clearly, she did not waive her right to bring a corollary relief proceeding for spousal support at some later time. The respondent referred to the limitation period in the Family Law Act, R.S.O. 1990, Chapter F.3, for the bringing of an application for spousal support. However, the Divorce Act, R.S., 1985, c. 3 (2nd Supp.), does not prescribe a limitation period for a corollary relief proceeding for spousal support.
[61] The appellant’s subsequent marriage and divorce was not a bar to her spousal support application. It was only one of many circumstances that had to be considered in applying the statutory factors.
[62] The motion judge's reasons indicate that he did not decide the matter on either of these bases. His only reference to the appellant’s delay in bringing her application is in his summary of the respondent’s submissions. In the same paragraph in which he mentions the appellant’s subsequent marriage, he also addresses her ability to support herself and the unsatisfactory state of the evidence that she is in need of support.
[63] In our view, the motion judge decided on the basis of the undisputed facts before him that there did not exist a genuine issue requiring trial. The matters in dispute could not affect the result.
[64] The undisputed facts in the record provide ample support for the motion judge’s conclusion that neither party experienced any economic advantage, disadvantage or hardship arising from the marriage.
[65] The respondent deposed that from the date of marriage until November 1991, the parties lived with his parents. For most of this period, the respondent's retired father cared for the children and, after his father’s death, his mother took a one-year leave of absence from work to care for the children. When his mother returned to work, and after the parties moved to their own home in November of 1991, other arrangements for the children's care were made. The respondent deposed that the appellant moved out of the matrimonial home for six months in 1993, leaving the full care of and responsibility for the children and home to him. The appellant did not dispute any of this evidence.
[66] Nor did the appellant dispute the respondent's evidence that, during the marriage, she attended Sheridan College full-time for two years to obtain a business administration certificate, took other courses in computer software, obtained her fitness instructor status, owned and operated her own aerobics studio, held several contract positions to teach aerobics, and at times worked in other full-time jobs as well.
[67] The appellant did not file any evidence that would raise a genuine issue as to whether she devoted her talents and energy to the household during the marriage to her own disadvantage, or that she suffered economic damage due to the division of labour in the marriage that requires repair. She did not assert that because of her non-monetary contributions to the marriage and household, she was adversely affected by matters such as loss of skills, seniority, work experience, or disrupted career continuity that diminished her ability to maintain herself.
[68] Moreover, the appellant did not challenge the respondent's evidence that since the demise of the marriage, she has taken additional training; nor did she take issue with the list of jobs that the respondent indicated she has held since the marriage.
[69] To the contrary, counsel for the appellant acknowledged before the motion judge that the appellant has skills she can utilize, but submitted that she was overburdened by excessive litigation with respect to the marriage and an unrelated personal injuries action arising from a dog-bite incident after the marriage breakdown.
[70] On the other side of the ledger, the appellant did not contest the respondent's attribution of his current success to his taking night school courses, and the upgrading of his education and skills since the marriage with the support of his current wife who provides care for the children.
[71] There was no suggestion on the record before the motion judge that the respondent was advantaged by the functions that the appellant performed during cohabitation, or that the respondent derived an economic advantage arising from the marriage or its breakdown.
[72] While the parties disagree whether the appellant had full-time custody of the children upon separation in February 1994, there is no dispute that the respondent has had full-time custody since August 1994 to the present. The respondent and the children resided with his mother until 1997 when they began cohabiting with his present wife.
[73] The appellant also did not contest that there were long periods of time over the years when she did not visit the children, or that she chose not to have any contact with them after a supervised access order was made on April 23, 2002.
[74] The respondent's full responsibility for the children and the appellant's failure to exercise her access rights to them are relevant to her spousal support application in that the appellant's income earning opportunities since the marriage breakdown have not been curtailed by the reduced economic choices and career diminishing responsibilities of a custodial parent, nor those of a non-custodial parent who wishes to remain close to the children.
[75] The parties disputed the reasons for the appellant's trips to Europe, whether she or others paid the expenses of those trips, whether she has an apartment in Florida, and whether it is likely she has income outside Canada. However, the appellant did not dispute that she has spent significant periods of time outside Canada. Her absences from Canada, ignoring the matters disputed, would have the effect of diminishing the income she could earn in Canada and would disrupt the continuity of her employment in Canada.
[76] The respondent emphasized the appellant's subsequent relationships in his written materials and oral submissions to the motion judge. He deposed that she had a more than two-year common-law relationship with one partner that ended in 1996, and began cohabiting with her future second husband in 1997. He claimed that the appellant’s second marriage lasted approximately 5 years. The appellant filed no evidence in response.
[77] The matter is clouded because the second husband’s petition for divorce from the appellant was in the continuing record. The attention of the motion judge was not directed to it. In that petition, the second husband claimed that he and the appellant married on June 26, 1998 and commenced living separate and apart in June 1999. It does not address the period of their cohabitation
[78] Thus, the record before the motion judge did not clearly establish the duration of the appellant’s second marriage or of her cohabitation with her second husband before marriage. The motion judge therefore commented, understandably in our view, that he had no satisfactory evidence about the appellant's second marriage.
[79] The motion judge’s comment indicates that he did not place great weight on the fact of the appellant’s second marriage. He simply had insufficient satisfactory evidence to deal with it. However, even ignoring the fact of the second marriage entirely, the uncontested evidence relating to the appellant's employment history, education and training, and business experience established that she could have been expected to be self-sufficient after her marriage to the respondent, and certainly after some 10 years had elapsed from the date of their separation.
[80] The undisputed facts do not raise an issue as to whether the appellant has suffered career disadvantage or diminished economic prospects arising from the marriage, whether she possesses the skills to maintain herself, or whether her career opportunities are hampered by ongoing responsibility for the children.
[81] It remains to consider whether non-compensatory factors provide a basis for the appellant's claim for spousal support. Need alone, unconnected to any disadvantage arising from the marriage, may be a sufficient basis to require spouses to contribute to the needs of their former partners when they have the capacity to pay:
[82] In this case, the materials before the motion judge included a brief suggestion that the appellant is suffering from depression. In the affidavit supporting her November 21, 2003 application, the appellant refers to "physical and emotional scars". Later in her affidavit, the appellant spoke of "the need to stabilize myself physically, emotionally and psychologically". However, the context of these comments makes clear that they were made in relation to the appellant’s unrelated action for damages arising from the dog bite incident. She said: "The proceeds that may come to me as a result of the dog bite case, I believe are mine personally to pay for the physical and emotional scars that I have incurred, hopefully soon that will go to court."
[83] It would not matter that the appellant's physical and emotional scars and psychological instability arose from the dog bite incident, rather than from the marriage of the parties, if it was established that they rendered her medically incapable of maintaining herself. As we stated earlier, need unrelated to the marriage can provide a non-compensatory basis for spousal support. The need, however, must be established as a matter of fact. In the circumstances of this case, when faced with the respondent's motion to dismiss summarily her application for spousal support, the appellant was required to place before the court a clear medical report describing her medical condition and how it created a situation of need. She did not do so.
[84] The appellant indicated, again in the context of her dog bite case, that Exhibit B to her affidavit is “a series of medical reports”. In fact, Exhibit B is not a series of medical reports but a letter from a family services agency advising that she was a participant in its program in September 2001. It indicates that, at the time, the agency considered that “depression and anxiety were major barriers” to the appellant’s employment.
[85] This letter is unsatisfactory in two respects. First, it is out of date. It refers to a period more than two years before the appellant’s application was filed. The appellant did not contest the husband’s itemization of her employment in the period 2001-2003. In fact, in her affidavit dated November 18, 2003 she refers to a job she held at the time that she swore the affidavit.
[86] Second, the letter does not provide, or even refer to, a medical diagnosis of depression or any other medical condition that would render the appellant incapable of maintaining herself.
[87] In short, the appellant did not file a medical report in response to the summary judgment motion, nor was the motion’s judge's attention drawn to any medical report in the continuing record.
[88] In the end, therefore, the suggestion that the appellant is suffering from depression was an unsupported and unproven allegation. In our view, the motion judge was not required to send this case to trial merely on the basis of a bald suggestion that the appellant is unable to maintain herself due to depression.
[89] It is telling that in the same affidavit in which she refers to her physical and emotional scars, the appellant identified unambiguously what she saw as the cause of her situation of need. She deposed that it was not her intention to proceed with her litigation against the respondent until the Family Responsibility Office cancelled her driver's licence for her failure to pay child support. The appellant claimed that this"essentially terminate[d] my ability to economically rehabilitate myself". She deposed that"without a driver's license, I was in jeopardy and still am of losing my job".
[90] In a similar vein, the evidence of both the respondent and appellant, and the submissions made on their behalfs about their attempts to resolve matters, provided sufficient support for the motion judge's view that the appellant brought her spousal support application not because she was in a situation of need, but for the ulterior purpose of securing the respondent's agreement to expunge all her arrears of child support and to eliminate any ongoing child support obligation.
[91] On the record we have summarized, the motion judge decided to grant the respondent’s motion to dismiss the appellant’s support application summarily. While not a trial judge, he still had to exercise discretion in balancing the statutory factors and applying them to the particular circumstances before him. In our view, the reasons for significant appellate deference to the decisions of trial judges in relation to support orders apply to the discretionary component of a summary judgment concerning support claims. We consider the remarks of L’Heureux-Dubé in Hickey v. Hickey, [1999] 2 S.C.R. 518, to be apt. She explained, at para. 12, that such an approach avoids giving parties in a family law case an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This promotes early finality in family law litigation. Although an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not to interfere with a support order simply because it would have made a different decision or balanced the relevant factors differently.
[92] In all the circumstances and on this record, we conclude that the appellant has failed to establish grounds for appellate interference with the support dismissal order. Accordingly, we would dismiss her appeal from this order.
VI. DISPOSITION
[93] Accordingly, for the reasons given, the respondent’s motion to quash or stay the appeal is dismissed. The appellant’s appeal is allowed in part, by setting aside paragraph seven of the motion judge’s order. Paragraph one of the motion judge’s order is also set aside and the following is substituted in its stead: “The respondent’s motion to dismiss the applicant’s application for spousal support is hereby granted.” In all other respects, the appeal is dismissed and the motion judge’s order remains in full force and effect.
[94] As success has been divided in this proceeding, we make no costs award.
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
LANG J.A. (Dissenting):
OVERVIEW
[95] I have had the opportunity to read the reasons of Cronk and Juriansz JJ.A. in this matter. I agree with them that an appellant may appeal a vexatious litigant declaration as of right. While I also agree that the appellant’s appeal of the vexatious litigant declaration must succeed, I reach that conclusion for different reasons. As well, while my colleagues would dismiss the appellant’s appeal of the dismissal of her spousal support claim, I take a different position and would allow the appellant’s appeal on this issue.
[96] I find it helpful to summarize my reasoning on these two issues at the outset.
[97] On the first issue, in my view, the motion judge was without jurisdiction to grant a vexatious litigant declaration. Section 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA), requires that such relief be requested “on application”. The legislature chose this unambiguous wording because the relief requested provides an extraordinary remedy affecting an individual’s basic civil right of access to justice. As such, this relief is not available on an interlocutory motion. The mandated process of an “application” is in accordance, not only with the plain wording of the statute, but also with the purpose and legislative history of the CJA. An application is also a suitable process for the relief sought. Since the motion judge was without jurisdiction to grant a vexatious litigant declaration, it is unnecessary to consider whether this appellant received a fair hearing.
[98] If I am wrong on the jurisdictional issue, I am also of the view both that the respondent’s material was inadequate to signal that he was seeking a vexatious litigant declaration and that the motion judge’s reasons did not meet the standard of informing the appellant of the principles he applied in restricting her right of access to the courts.
[99] On the spousal support issue, my colleagues interpret the motion judge’s order as granting the respondent’s motion “to strike the pleadings of the Applicant”. I disagree. The motion judge ordered a dismissal of the appellant’s application for support. My colleagues also construe the respondent’s motion, which cited no supporting rule, as one for summary judgment. Even if that is so, in my view, the case management judge had precluded the respondent from seeking a dismissal of the appellant’s claim on any basis other than that it fell outside a limitation period. Specifically, the case management judge’s endorsement constrains the respondent’s motion to one to “strike claims for spousal support as outside limitation periods”. Since the motion judge implicitly recognized that there was no limitation period under the Divorce Act, R.S.C. 1985, c. 3 (2d supp.), he was obliged to dismiss the respondent’s motion to strike. In any event, the respondent did not meet the test of showing that there was no genuine issue for trial because there were many issues of credibility on material facts that could only be resolved at trial.
[100] Accordingly, I would allow the appeal on both the vexatious litigant declaration and the dismissal of the appellant’s spousal support application.
[101] My colleagues have set out the chronology of the motion leading to this appeal, the reasons given by the motion judge, the essential facts of the parties’ marriage and post-separation litigation, the relevant statutory provisions, the issues, and the principles of statutory interpretation. While I take a somewhat different view on the facts and on what materials were before the motion judge, I will refer to those differences only where necessary to illustrate a particular issue.
[102] For convenience, and to frame the discussion, I repeat the relief requested by the respondent: $25,000 security for costs, an order striking the appellant’s pleadings, an order requiring the appellant to seek leave “prior to filing”, costs of $15,000, and damages for bad behaviour of $10,000. The only rule cited in support of the requested relief was rule 24 of the family rules, which relates to the request for security for costs.
[103] I will first consider the standard of review before addressing the issues arising from the vexatious litigant order and the spousal support dismissal.
ANALYSIS
1. Standard of review
[104] I begin with a consideration of the appropriate standard of review, mindful of the guidance given in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. A question of statutory interpretation, such as that posed by the interpretation of s. 140 of the CJA, raises a question of law. As such, the standard of review is correctness. Similarly, the delineation of the proper test, both for determining whether a litigant is vexatious and whether an action should be summarily dismissed, is a question of law. It is subject to review on the same standard of correctness. On the other hand, this court will not interfere with a factual finding, absent a palpable and overriding error or a misapprehension of the evidence.
2. Process to obtain a vexatious litigant declaration
[105] Section 140 of the CJA says that a vexatious litigant order can by sought “on application”. In this case, however, the motion judge granted a vexatious litigant declaration on an interlocutory motion. In my view, he had no jurisdiction to do so. The jurisdictional question is an important one because, as my colleagues say, a vexatious litigant order is “an extraordinary remedy that alters a person’s right to access the courts.” It is also an order increasingly granted in family law motions.
[106] While my colleagues decline to decide the jurisdictional issue, they review the respondent’s argument that “on application”, may be given a “liberal and remedial construction” to take into account the “interests of the administration of justice and fairness to the parties”. They conclude that “it may have been open to the motion judge” to grant a vexatious litigant declaration. With respect, in my view and on a reading of the words of the statute, deference must be given to the legislature’s choice of the words “on application”. Although this court should interpret statutes mindful of their purpose and context, such an exercise cannot negate a clear legislative intention found in the language of the statute. The language of the CJA makes it clear that a motion judge has no jurisdiction to grant a vexatious litigant declaration.
[107] I say that the motion judge had no jurisdiction for a number of reasons. All these reasons, however, relate to the proper interpretation of s. 140 of the CJA. Specifically, I will outline how the purpose, legislative history, and the words of the statute all support this interpretation. I will further explain why this interpretation results in the most suitable process for obtaining a vexatious litigant declaration.
[108] The question of jurisdiction turns wholly on the interpretation of s. 140 of the CJA, which provides:
s.140(1) Vexatious proceedings – 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 [emphasis added].
[109] The words “on application” do not appear to have received prior consideration by this court. [^1]
[110] Statutory interpretation requires a purposeful and contextual approach. In a recent decision, also a family law case, the Supreme Court of Canada summarized the task saying: “[I]t is necessary to examine the words of the provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme [of the legislation]”: Contino v. Leonelli-Contino (2005), 2005 SCC 63, 341 N.R. 1 at para. 19.
[111] In accordance with that guidance, and in the context of the provision’s purpose and legislative history, the legislature’s choice of the plain words “on application” allows vexatious litigant declarations to be brought by application or by action, but not by motion. I am reinforced in this conclusion by the nature of the application process, which can be tailored to provide a just and expeditious determination of the issue.
(i) Purpose
[112] The overarching purpose of the CJA when it was passed was “to comprehensively revise the legislation establishing Ontario courts and regulating their proceedings”.[^2] 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.”
[113] 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.
[114] In Ballentine, supra, 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)
[115] 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.[^3] A vexatious litigant declaration is akin to a stay for abuse of process,[^4] 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.[^5]
(ii) Legislative history
[116] The purpose of s. 140 is confirmed by its legislative history. A vexatious litigant declaration is not available at common law; it is a creature of statute, initially authorized by the Vexatious Proceedings Act, R.S.O. 1980, c. 523 (VPA) and its predecessors.[^6] Relief under the VPA was sought by the issuance of an originating notice:
1(1) Where upon an application made by way of originating notice according to the practice of the court … the judge may order that no legal proceedings shall, without leave of the Supreme Court or a judge thereof, be instituted in any court by the person taking such vexatious legal proceedings [emphasis added].
[117] At the time, the Interpretation Act, R.S.O. 1980, c. 219, s. 29 [subsequently rep. S.O. 1984, c. 11, s. 184(2)] confirmed that:
Unless otherwise provided, where an application to a court or a judge is permitted by an Act, the application may be made by originating notice in the manner prescribed by the rules of court [emphasis added].
[118] The rules at that time required that all proceedings be instituted by originating notice of motion or by writ of summons.[^7] Interlocutory motions, which were not an originating process, were dealt with separately. Thus, an originating notice initiated a proceeding; it was not an interlocutory step within a proceeding.
[119] In 1984, both the VPA and s. 29 of the Interpretation Act were repealed. The CJA was enacted, including s. 140. This was a “consolidat[ion of] all Acts relating to the courts of Ontario”.[^8] The inclusion of vexatious relief in the CJA was consistent with the Act’s purpose of providing the apparatus necessary for access to justice in Ontario and the exceptions to that access.
[120] The “new” Rules of Civil Procedure, O. Reg. 560/84 replaced the former terms of a “writ of summons” and an “originating notice” with “action” and “application”. Under the new rules, all proceedings were required to be brought “by action, except where a statute or these rules provides otherwise” [emphasis added] (rule 14.02). Where a statute provides otherwise, “a proceeding may be commenced by an application to the Superior Court of Justice or to a judge of that court” (rule 14.05(2).
[121] Thus, the purpose and the legislative history of the CJA support the interpretation that a vexatious litigant declaration is sought by commencing a proceeding, not by bringing a motion within a proceeding. This approach makes sense. A vexatious litigant declaration grants substantive relief that affects the rights of the individual litigant. It is not procedural in nature. Accordingly, it is not a remedy found in the subordinate rules; it is in the CJA.
[122] In this sense, it is unlike those provisions in the rules that provide for interlocutory relief to dismiss an action because it discloses no cause of action, is an abuse of process, or is frivolous or vexatious. Section 140 is aimed at the litigant and not at the litigation.
[123] No rule permits a party to bring a motion for an order declaring a litigant to be vexatious.
(iii) Plain reading
[124] Further, a plain reading of “on application” compels the conclusion that the legislature intended an application to be the required process. “Application” is defined in s. 1 of the CJA as “a civil proceeding that is commenced by notice of application or by application”. This definition is plain and unambiguous. In my view, this section does not need either a liberal or a remedial interpretation. It serves justice well.
[125] Even if a liberal or remedial interpretation is warranted, such an interpretation cannot directly contradict the plain statutory language. The statute’s purpose is used to resolve any ambiguities and to guide interpretation, but not to undermine the plain reading of the statutory provision. Further, the presumption of consistent expression presumes that the definition of “application” in s. 1 informs the interpretation of that word in s. 140.[^9]
[126] Significantly, this definition makes no reference to commencement by motion. Indeed, “motion” is separately defined as “a motion in a proceeding or an intended proceeding” [emphasis added]. In my view, the distinction in the rules between application and motion provides important clarification of the legislative intent that such an order may only be sought on “application” and is not available on a motion.
[127] An “application” is defined as one commenced by “notice of application or by application.” The additional words, “by application”, do not assist in the interpretation of “application” because “by application” simply refers to the different wording used in the family rules. When the CJA definition of application was changed to include “by application”, the Family Law Rules, O. Reg. 114/99 required that all proceedings be commenced “by application”. Accordingly, the term “by application” does no more than accommodate the new wording used in the family rules.[^10]
[128] Indeed the family rules, like the civil rules, distinguish between an application and a motion. An “application” is specifically defined in the family rules as “the document that starts a case or the procedure by which new cases are brought to the court for a final order” (rule 2(1)). In family law, “[t]o start a case, a person shall file an application” (rule 8(1)). In contrast, “on motion” is defined as meaning “on motion of a party having an interest in the case”. Rule 14 permits a person to make a motion for a temporary order for a claim made in an application. A motion may also be made for directions on how to carry on the case or to seek a change in an order. Like the civil rules, the family rules do not contain the authority to seek the substantive relief of a vexatious litigant declaration. It is only available under the CJA.
[129] As I have said, none of the authorities directly analyze the process for seeking a vexatious litigant order. The issue was considered, however, in Walcott v. Ontario, [1997] O.J. No. 2910 (Gen. Div.), aff’d [1998] O.J. No. 791 (C.A.), leave to appeal to the S.C.C. refused, 1998 S.C.C.A. No. 147. In that case, on an interlocutory motion, Ground J. struck a claim as frivolous or vexatious. He then considered the moving party’s additional claim for a vexatious litigant declaration. On this, he said: “[i]nsofar as certain of the motions before me today seek an order pursuant to s. 140 of the Courts of Justice Act, I will regard those parts of the motions as having been withdrawn and assume that the moving parties will proceed by way of separate applications” [cite omitted, emphasis added]. I take from this that Ground J. was of the view that a vexatious litigant declaration is not available on an interlocutory motion. I agree.
[130] To summarize, when applied to s. 140 of the CJA, all the interpretive factors dictate that the section be interpreted to allow a party to request a vexatious litigant declaration by application or by action and not by motion. The purpose of s. 140, when considered within the broader context of the CJA, requires that this curtailment of a fundamental right be interpreted narrowly. The legislative history reveals a direct intent to request a vexatious litigant declaration by originating process. Finally, the language of the CJA is unambiguous with respect to the distinction between a motion and an application. For these, reasons, I would find that s. 140 mandates that a vexatious litigant declaration be sought by application.
(iv) Application is the suitable process
[131] Not only is an application the mandated process, in my view, it is also the procedure best suited to the determination of whether a litigant is vexatious. The process for an application differs in important ways from the process for a motion.
[132] First, an application allows either a more summary procedure argued on written materials or, where necessary, a full trial. An application contemplates that, after the delivery of affidavits and any cross-examinations, the proceeding will be argued before a judge. However, in a complex matter, or where credibility is at issue, a party may move for directions for the conduct of the application (rule 38.10). On such a motion, the court will determine the most appropriate mechanism for a fair adjudication of the dispute. A fair adjudication may or may not require a trial of one or more issues with or without pleadings, discovery, and production.[^11] Thus, the parties have the benefit of the usual streamlined application procedure, but may also resort to a trial if the circumstances merit.
[133] Second, applications are heard by judges; motions may be heard either by judges or by masters. Importantly, an application under s. 140 is to “a judge of the Superior Court of Justice”, which is a clear indication of the legislative direction that an application or action are the only processes available.
[134] Third, an application requires personal service on the litigant, a requirement that is an appropriate safeguard given the importance of the civil right at stake.
[135] Fourth, an affidavit on an application may contain statements on information and belief only with respect to non-contentious facts, while an affidavit on a motion may contain such statements whether or not the facts are contentious. See civil rules 39(4) and (5). It seems to me that a person who is at risk of losing their civil right to litigate is entitled to the higher evidentiary standard available in applications and not available on motions.
[136] Fifth, while cross-examinations on affidavits are permitted on both applications and interlocutory motions, a trial of the issue is only available on an application. Although available, a motion judge rarely permits viva voce evidence (rule 39.03(4).
[137] Sixth, an application permits applicants from different cases to join together in one application to resolve the issue for all. In this way, the judge adjudicating the vexatious application has a global picture of the respondent’s conduct and is able to determine the question of whether the litigant is vexatious in an expeditious single proceeding. Thus, an applicant in one proceeding is not required to participate in an interlocutory motion in an unrelated proceeding.
[138] Seventh, such an interpretation is in accord with my colleagues’ conclusion, with which I agree, that leave is not required to appeal from the very order that declares one a vexatious litigant.
[139] One could argue that the legislature’s requirement for an application rather than a motion could lead to a multiplicity of proceedings. In my view, it does not. A vexatious litigant application may be joined or consolidated with another application, including a variation application.[^12] In such a circumstance, the applicant could move for summary judgment of the issue under Rule 20 in a civil proceeding or Rule 16 in a family proceeding. In response, the respondent could move for a trial of the issue or other appropriate directions. In either case, the alleged vexatious litigant would have adequate notice of the relief sought and the access to the process best suited to achieve a just result.
[140] In conclusion on this issue, an application is both the mandated process and the most suitable process to ensure that an allegedly vexatious litigant receives a full and fair hearing without unduly burdening the other litigant with the cumbersome weight of an action. For these reasons, I am of the view that that the legislature mandated an application, and not a motion, as the process to seek a vexatious litigant declaration under s. 140 of the CJA. Since the respondent failed to bring an application for a vexatious litigant declaration, the motion judge was without jurisdiction to consider that relief.
3. Did the motion judge err in declaring the appellant a vexatious litigant?
[141] My colleagues conclude that the vexatious litigant declaration cannot stand, but for different reasons. With respect to their reasons, I agree that the motion transcript demonstrates that a vexatious litigant declaration was not an issue placed or argued before the motion judge.
[142] In addition, in my view, even if the respondent had used the correct procedure, his materials were inadequate to give the appellant notice that he was seeking a vexatious litigant declaration. While the respondent sought both security for costs and an order that the appellant seek leave “prior to filing”, under “laws and rules on which you are relying”, the respondent cited only rule 24. That rule deals with costs generally and security for costs. This reference is consistent with the respondent’s affidavit where he said both that he was seeking “security for costs prior to further litigation” and that he “brought motion for special motion date for security for costs”. Rule 24(13)(4) of the family rules specifically allows security for costs on the ground that “[t]here is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.” The reference to “a waste of time or a nuisance” has been interpreted in at least one case to be equivalent to “frivolous or vexatious”: Stefureak v. Chambers, [2005] O.J. No. 1086 at para. 15 (S.C.J.). This was what the respondent had in mind. He made no reference whatsoever to s. 140 of the CJA because he was not seeking relief under that provision. It is not open to a motion judge to substitute the relief he or she thinks appropriate for that sought by the moving party.
[143] In any event, as I will discuss more specifically on the question of spousal support, the case management judge had not delineated vexatious litigant relief as one of the issues to be determined on this motion.
[144] Moreover, in this case, a vexatious litigant order was unnecessary. Such an order was granted earlier against the appellant on consent under family rule 14(21). That order prohibited the appellant from bringing any more motions on custody and access issues without first obtaining leave of the court. Since that order remained extant at the time the motion judge imposed the s. 140 order, and the motion judge dismissed the wife’s spousal support claim, no discernable purpose was served by the s. 140 order.
[145] Finally, in my view, a court granting a vexatious litigant order must provide reasons that set out the relevant principles for granting such relief and then apply those principles to the facts of the case, balancing the appellant’s right to be free from abusive litigation with the respondent’s right of access to justice.[^13] The motion judge’s reasons in this case do not do so.
[146] For these reasons, it is my view that the record did not support the motion judge’s vexatious litigant declaration. While the motion judge additionally relied on s. 140(5) to stay the proceeding as an abuse of process, and that provision may apply to the facts of this case, the motion judge gave no reasons for doing so. In those circumstances, the appellant has been unable to formulate her grounds for an appeal: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869.
4. Did the motion judge err in dismissing the appellant’s claim for spousal support?
[147] With respect to the reasons of my colleagues, I am of the view that the motion judge’s dismissal of the appellant’s spousal support claim must be set aside. In its place, I would dismiss the respondent’s motion to strike the appellant’s pleadings.
[148] I would make this disposition for two reasons. First, the scope of the motion was restricted by a prior order limiting argument to the issue of the expiry of a limitation period. Second, even if the summary judgment motion was properly heard on all issues, the record does not support the granting of the motion.
[149] For the purpose of this analysis, I agree with my colleagues that the respondent’s motion to strike the appellant’s pleadings was a summary judgment motion because the appellant’s counsel conceded the point before the motion judge.
[150] Since this was a summary judgment motion, the motion judge was required by rule 16(6) of the family rules to determine if the respondent had established that “there is no genuine issue requiring a trial”. Under rule 16(12) a motion judge also may decide a question of law before trial. The wording of these family rules is similar to civil rules 20.04(2) and 20.04(4). On such a motion, the motion judge does not assess credibility or weigh evidence. Rather, the motion judge should assess whether a genuine issue exists as to a material fact[^14] or should provide an analysis on a question of law.
(i) The scope of the summary judgment motion
[151] As I have set out above, I conclude that the motion judge erred in his application of rule 16 for several reasons. First, the only issue before the motion judge was a question of law: whether the appellant’s spousal support claim was barred by a limitation period. As I said earlier, the case management judge restricted the motion regarding spousal support. Her endorsement reads that, “RH [respondent husband] may move … (2) strike claims for spousal support as outside limitation periods”.
[152] This issue was the primary focus of the respondent’s affidavit and of his argument. Because this was the issue on the motion, the appellant filed an affidavit saying “I do however clearly understand that the claim for spousal support has no limitation period” as well as an affidavit giving the opinion that “spousal support is not statute barred … and was never dealt with in any previous proceeding.”
[153] In fairness to the motion judge, I pause to note that the case management order does not appear to have been drawn to his attention by either party. Indeed, the parties made the motion judge’s task very difficult because they failed to follow the case management judge’s direction to condense the 30-volume continuing record into a manageable motions record. Nonetheless, the endorsement limiting the contents of the motion appears to be the penultimate endorsement in the continuing record and determined the parameters for the motion. In my view, since the limitation period was the sole issue before the motion judge, and it is conceded that there is no limitation period, the appeal must be allowed for this reason alone.
(ii) The record does not support granting the summary judgment motion
[154] My colleagues, however, are of the view that the motion judge was entitled to decide the motion on its merits. Their reasons delineate the relevant factors in assessing a spousal support claim and point out that, to avoid summary judgment, any relevant factual dispute must relate to material facts. They conclude, and I agree, that neither the delay in applying for spousal support or the appellant’s subsequent relationships was determinative of the spousal support issue. My colleagues conclude that the appellant’s relevant circumstances were not disputed because she did not contest the respondent’s references to her skills, training and employment and because she failed to produce satisfactory evidence as to her inability to support herself.
[155] In my view, the record that was before the motion judge was more extensive than that set out in my colleagues’ reasons. Volume 30 of the continuing record was before the motion judge. In addition, the appellant incorporated by reference her earlier October affidavit setting out her circumstances. On the whole of that record, in my view, the appellant did contest much of the respondent’s affidavit.
[156] In any event, I would come to a different conclusion from my colleagues on the merits for several reasons.
[157] First, the motion judge made no reference to the onus on the respondent to show that there was no genuine issue for trial. Instead, he placed the onus on the appellant as though he were deciding her application on its merits. The motion judge did not grant the respondent’s motion, but instead dismissed the appellant’s application. Accordingly, the motion judge misconstrued the issue before him and improperly reversed the onus. He erred in so doing.
[158] Second, while the appellant acknowledged her skills and training, she also attested to her limited employment income since the breakdown of her ten-year marriage. She argued that her low income resulted from her depression. She attributed her depression, at least in part, to a dog attack she suffered six months after the separation in which she and one of the children suffered serious injury. The parties’ son was awarded $45,000 for the injuries that he suffered. The appellant’s action for damages remains outstanding. The appellant claimed disabling trauma from this incident as well as from the ongoing litigation.
[159] There appears to have been some evidence on the record to support these conclusions. While it is unfortunate that the medical reports referenced in her affidavit were omitted from the appeal book, they were apparently before the motion judge. Moreover, there was significant reference in the appeal book to the counselling and life skills courses that the appellant took from independent agencies that reported on her progress in resuming her daily life. The extent to which the appellant was disabled by depression was a contested material fact that, in my view, required a trial of the issue.
[160] Third, there was significant evidence of the appellant’s reduced income, including accounting evidence that detailed her annual earnings, her T3 forms, and her welfare statements. There was also evidence that the appellant lived in reduced circumstances sharing an apartment with her mother at a nominal rent. This evidence was in contrast to the admitted evidence of the respondent that he earned approximately $140,000 annually. I say approximately because, unlike the appellant, the respondent failed to comply with an extensive disclosure order made by the case management judge. In any event, apart from the respondent’s income, the appellant’s ability to earn income was a disputed material fact that warranted a trial of the issue.
[161] Fourth, my colleagues make note of the appellant’s trips to Kosovo and conclude that those trips deprived the appellant of income-earning time in Canada. Yet the records filed by the appellant indicate that she earned money in Kosovo working for “NATO – Kosovo Force” and that she taught English as a Second Language in Kosovo. During that time, it appears that she earned approximately $8,000. Moreover, the cost of her travel to Kosovo, she attested, was paid by her church. I therefore have some difficulty in concluding that the appellant somehow diminished her income earning capacity by going to Kosovo. The purpose of the appellant’s travels and the other issues raised in my colleagues’ reasons are disputed material facts that can only be resolved at trial.
[162] Fifth, the motion judge made no reference to the appellant’s evidence about her disability or her income earning capacity and, apart from questioning her motive, gave no reason for preferring the respondent’s evidence over that of the appellant. The entirety of the motion judge’s reasons on spousal support are as follows:
Meanwhile, the ex-wife had remarried in what appears to be comfortable circumstances. In addition, she had a history of self-supporting employment. I have no satisfactory evidence as to the outcome of her later marriage and no satisfactory evidence that she is in need of support. It appears that she has continued the claim against her ex-husband and instituted a claim for spousal support in order to harass him.
[163] From this, the appellant would conclude that the motion judge reasoned that she was remarried, lived in comfortable circumstances, had a history of self-supporting employment, and was in no need of support. This was the analysis that led the motion judge to the conclusion that the only purpose of the appellant’s application was to harass the respondent.
[164] The evidence, however, does not support the motion judge’s conclusion about the appellant’s motive. Rather, the appellant gave evidence that she initiated her proceeding only in response to the Family Responsibility Office’s suspension of her driver’s licence, which she claimed jeopardized her employment prospects and thus her ability to be self-sufficient.
[165] The evidence also does not support the motion judge’s conclusion on the appellant’s remarriage. A review of the materials discloses that the appellant did remarry. However, at the most, she cohabited with her second husband for little more than one year. I say this because the respondent says that the appellant began living with her second husband in 1998. According to the petition for divorce in the second marriage, cohabitation ceased in June 1999. While the second marriage may legally have subsisted until 2003, clearly it can be fairly said that the appellant would have had no support from her second husband. Indeed, from the record, it appears that the appellant and her second husband may have subsisted on welfare during part of their cohabitation.
[166] With respect to her ability to earn income, the appellant acknowledged that she worked at many of the places and at many of the jobs outlined in my colleagues’ reasons. Her work, however, was part-time and on a freelance basis, mostly at clerical or fitness jobs. Her earnings, post-separation, were not significant, at least relative to those of the respondent.
[167] It seems to me that, even if the appellant had an uphill battle in her claim for support -- and she clearly does -- she is entitled to have that claim heard. In my view, the reasons do not support the conclusion that it was plain and obvious that the appellant’s claim for spousal support could not succeed. It cannot be said in all the circumstances that the respondent established that there was no genuine issue for trial, which is the test under family rule 16.
[168] Moreover, the motion judge appears to have based his dismissal of the appellant’s support claim primarily on his finding that she was a vexatious litigant. Since this is a finding that, we all agree, must be set aside, and since that finding tainted the motion judge’s view on the spousal support issue, his dismissal of the appellant’s support claim cannot stand.
Disposition
[169] For these reasons, I would allow the appeal. I would set aside the order of the motion judge both with respect to the vexatious litigant declaration and with respect to the dismissal of the appellant’s claim for spousal support. In its place, I would dismiss the respondent’s motion for security for costs and his motion for summary judgment. In all the circumstances of the state of the record, I would not award costs to either party.
RELEASED: “Feb. 14, 2006” (“EAC”)
“S.E. Lang J.A.”
[^1]: While the cases do not consider “on application”, an application was the procedure employed in Mascan Corp. v. French (1986), 8 C.P.C. (2d) 187 (Ont. H.C.J.), aff’d (1988), 64 O.R. (2d) 1 (C.A.); Ballentine v. Ballentine, (2003), 65 O.R. (3d) 481 (C.A.); Lang, Michener, Lash, and Johnston v. Fabian (1987), 59 O.R. (2d) 353 (H.C.J.); and Re Kitchener-Waterloo Record Ltd. and Weber (1986), 53 O.R. (2d) 687 (Sup. Ct.). Although a vexatious litigant order was granted on an interlocutory motion in Ostovskaia v. Ostrovsky, [2001] O.T.C. 773 (S.C.J.), the reasons do not address the process. For other cases granting relief on an interlocutory motion without analysis of the process see Coady v. Boyle (2005), 13 R.F.L. (6th) 257 (Ont. C.A.) and Ferenczi v. State Farm Mutual Automobile Insurance Co. (2004), 4 C.P.C. (6th) 354 (Ont. S.C.J.).
[^2]: Garry D. Watson & Michael McGowan, Ontario Supreme and District Court Practice 1985 (Toronto, Ont.: Carswell, 1984) at 4.
[^3]: See Re Vexatious Actions Act; Re Jones (1902), 18 T.L.R. 476 at 477.
[^4]: As Lord Denning said in Attorney-General v. Vernazza, [1960] 3 All E.R. 97 at 101 (H.L.): “No [one], let alone a vexatious litigant, has a vested right to bring or continue proceedings which are an abuse of the process of the court.”
[^5]: Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) at 399-400.
[^6]: VPA, 1930, S.O. 1930, c.24
[^7]: Rule 4 of the then Rules of Practice of the Supreme Court of Ontario, R.R.O. 1980, Reg. 540, provided that, unless provided otherwise by statute, “every action must be commenced by the issue of a writ of summons” and rule 11 provided that where an application was permitted by statute, it may be made by “originating notice of motion”.
[^8]: Garry D. Watson & Michael McGowan, Ontario Civil Practice 2006, ed. by Philip W. Augustine, Justin W. de Vries & Mark C. McGaw (Toronto, Ont.: Thomson, 2005) at 5.
[^9]: Ruth Sullivan, supra, note 5 at 162-64.
[^10]: For a discussion on this point and on the meaning of “may apply” see Chilian v. Augdome Corp. (1991), 2 O.R. (3d) 696 (C.A.). In that case, Morden J.A. concluded that “may apply,” simply allows a person to seek an oppression remedy by application or by action, both of which are originating processes.
[^11]: If a trial of all the issues is ordered, the application proceeds as an action: civil rule 39(2).
[^12]: See S.(M.) v. S. (P.I.) (1998), 115 B.C.A.C. 146 (C.A.) where an application for habeas corpus was combined with a vexatious litigant application. Also, family rule 8(3) and civil rules 5 and 6.
[^13]: Lang, Michener, Lash, and Johnston v. Fabian, supra; Foy v. Foy, supra; Law Society of Upper Canada v. Zikov (1984), 47 C.P.C. 42 (Ont. H.C.J.); Winkler v. Winkler (1987), 46 Man. R. (2d) 150 (C.A.).
[^14]: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.) and Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.).