Court of Appeal for Ontario

Date: 2022-10-06 Docket: C70730 & C70931

Before: Lauwers, Roberts and Miller JJ.A.

Parties

Between: Melissa Bell, Applicant (Appellant/Responding Party) And: Ardian Fishka, Respondent (Respondent/Moving Party)

Counsel

Melissa Bell, acting in person Jared Teitel, for the moving party

Heard: In writing

Reasons for Decision

[1] This motion arises in the context of the appellant’s two family law appeals from the May 2, 2022 Final Order of Shore J. of the Superior Court of Justice. The respondent brings this motion in writing under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 104, and submits that the appeals ought to be dismissed as frivolous, vexatious and an abuse of process. We have reviewed the parties’ lengthy written submissions and attachments, including the order under appeal and previous court orders, as well as the appellant’s lengthy notices of appeal.

[2] Rule 2.1 of the Rules of Civil Procedure empowers a court, on its own initiative, or on motion by any party to a proceeding, to stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

[3] A proceeding includes an appeal. As this court noted in Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 43, “Rule 2.1 is meant to provide a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process.”

[4] The appellant’s appeals are clearly frivolous, vexatious and an abuse of process. The record demonstrates that the appellant has repeatedly litigated issues that have already been decided, engaged in abusive behaviour, and deliberately failed to comply with clear court orders. These appeals are the last in a long series of fruitless proceedings pursued by the appellant. These reasons explain why we allow the respondent’s motion and dismiss the appellant’s appeals.

[5] A general summary of the procedural history leading up to this motion is helpful to explain our disposition of this motion and the appeals.

[6] The parties were never married or in a relationship. They have a child together. The child is 12 years old and lives with the appellant. The parties have been involved for years in lengthy and bitterly contentious family law proceedings that have taken up much time, money and judicial resources in the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court, and the Court of Appeal. According to the respondent’s submissions that are corroborated by the various court orders produced on this motion, the appellant has brought myriad unsuccessful proceedings and been the subject of several costs orders that remain unpaid.

[7] These orders include the August 5, 2021 order of Horkins J. of the Superior Court of Justice that the appellant pay no later than October 12, 2021 the amount of $24,436.63 into trust as security for the respondent’s costs in relation to her appeals from orders made by Finlayson J. of the Ontario Court of Justice and the October 7, 2021 order that she pay the respondent $7,000 as costs of the motion for security for costs. In her reasons, Horkins J. noted that the appellant refuses to pay costs when ordered and has carried on despite unpaid cost orders. Horkins J.’s August 5, 2021 order provided that the appellant was barred from bringing any further motions or seeking any further relief until she complied with the orders, unless leave was granted by the court, and the respondent could bring a motion to dismiss the appeals.

[8] On January 6, 2022, the appellant’s appeal from Horkins J.’s orders was dismissed by the Divisional Court. She failed to pay the required security, or the motion costs ordered in favour of the respondent. She brought a motion before Shore J. to obtain leave to continue with her appeals. The respondent brought a motion under r. 1(8) of the Family Law Rules, O. Reg. 114/99 to dismiss her appeals on the basis of her failure to comply with Horkins J.’s orders.

[9] By her Final Order of May 2, 2022, Shore J. dismissed the appellant’s appeals from the following orders:

i. The November 3, 2020 and January 26, 2021 Final Orders of Finlayson J. of the Ontario Court of Justice: the November 3, 2020 order dismissed the appellant’s request for financial disclosure and other relief and set a new monthly amount for child support payable by the respondent for the parties’ 12-year-old child who lives with the appellant; and the January 26, 2021 order provided for the payment of costs by the appellant to the respondent, set off against support arrears owing by the respondent to the appellant.

ii. The July 12, 2021 Interim Order of Katarynych J. of the Ontario Court of Justice: it stayed Katarynych J.’s June 23, 2021 order until the appellant provided proof of the parties’ child’s Section 7 expenses in accordance with para. 11 of Finlayson’s J. November 3, 2020 Final Order.

[10] In her detailed endorsement, Shore J. reviewed the protracted history of the proceedings. She noted that a large portion of the appellant’s factum focussed again on the question of why the court should set aside the orders of Horkins J. despite her unsuccessful appeal before the Divisional Court. She also noted that the appellant remained in default under Horkins J.’s orders. She detailed the numerous unsuccessful proceedings brought by the appellant and her failure to comply with her own disclosure obligations, as well as numerous cost orders. She referenced numerous negative findings made about the appellant by previous judges, including that the issue of the litigation is entirely disproportionate to the steps and positions that the appellant is taking or wishes to take; her approach to this litigation has been irresponsible and a wasteful use of the court’s limited resources; she has engaged in abusive behaviour towards the respondent’s counsel; she has declared that she will not pay the respondent his costs under any circumstances; and she has taken unreasonable positions and has acted unreasonably.

[11] Shore J. noted that at the time Horkins J. made her orders, the appellant had not yet appealed the July 12, 2021 Interim Order of Katarynych J. However, she determined that Horkins J.’s prohibition against the appellant commencing or continuing any proceeding without leave applied to her subsequent appeal. Moreover, the appellant’s failure to comply with Horkins J.’s orders permitted the dismissal of her appeals in accordance with the court’s broad jurisdiction to make “any order that it considers necessary as a just determination of the matter” because it triggered r. 1(8) of the Family Law Rules. She concluded that:

The Appellant has caused the respondent to incur significant costs and has not paid the costs ordered against her. The appellant had a chance to meet the conditions set out in Justice Horkins’s orders. She failed to do so. The appellant has no intention of paying the costs owing and is thus deliberately in breach of court orders. The appellant also has wasted considerable amount of court time and resources in fruitless endeavours. To allow her to continue in these circumstances would not only be grossly unfair to the respondent but would bring the administration of justice into disrepute. The appropriate remedy here is to not allow the Appellant to continue with her appeals.

[12] The appellant’s lengthy written submissions filed in response to the respondent’s r. 2.1 motion add no new arguments but raise procedural issues that are not relevant and essentially refer to and repeat the arguments set out in her notices of appeal. The appellant’s notices of appeal are identical. They fail to set out any legally tenable error in Shore J.’s decision. Shore J. clearly had jurisdiction to dismiss all of the appellant’s appeals because of her failure to comply with Horkins J.’s clear orders. The notices of appeal fail to explain or provide any legal justification for the appellant’s failure to comply with Horkins J.’s clear orders. They simply reiterate the appellant’s previous unsuccessful arguments as to why Horkins J.’s orders should be set aside. The appellant’s notices of appeal are in keeping with the frivolous, vexatious, and abusive manner that she has conducted the entirety of these proceedings for the past decade.

[13] To permit the appellant to continue with her appeals would allow her to ignore the consequences of her breaches of numerous court orders, endlessly re-litigate issues, and continue to abuse the process of the court. It would also be grossly unfair to the respondent and their child, both of whom are entitled to finality. As this court stated in Simpson, at para. 41: “Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided”. That is the case here.

Disposition

[14] Accordingly, the respondent’s motion is allowed. We dismiss the appellant’s appeals.

“P. Lauwers J.A.”

“L.B. Roberts J.A.”

“B.W. Miller J.A.”