Court File and Parties

Ontario Court of Justice

Date: 2018-12-19

Court File No.: Toronto D53637/11

Between:

Bernadette Bokor Applicant (Mother)

— and —

Peter Hidas Respondent, moving party (Father)

Before: Justice Robert J. Spence in Chambers

Reasons released on: December 19, 2018

Respondent father's leave motion submitted in writing, without notice to applicant mother

Decision

SPENCE J.:

Introduction

[1] This is the respondent father's motion brought without notice to the applicant mother wherein he seeks leave to bring a motion to change custody, access and child support, from a final order of Justice Stanley Sherr dated February 4, 2013, and five orders of Justice Debra Paulseth, as follows: June 10, 2013, October 28, 2013, June 17, 2014, August 12, 2014 and March 2, 2016.

[2] Paragraph 3 of Justice Paulseth's 2016 order stated:

Any future Motions to Change by the Respondent father must be with leave from the Court and without notice to the Applicant mother.

[3] In order to better understand the context of the father's current leave motion, it is helpful to provide some historical context of the litigation proceedings.

Justice Sherr's Order dated February 4, 2013

[4] On February 1, 2013, Justice Sherr presided over a trial in which the issues were custody of the parties' three children (now 12 years of age and 10 year-old twins).

[5] Following the trial Justice Sherr ordered sole custody to the mother, and specified parenting time to the father.

[6] Justice Sherr ordered the father to pay child support to the mother in the amount of $1,535 per month, based on an annual income to the father in the amount of $80,333.

[7] Justice Sherr also ordered the father to pay costs to the mother in the amount of $7,200, inclusive of disbursements and HST, payable within 45 days.

Justice Paulseth's Order dated June 10, 2013

[8] The father subsequently brought a motion seeking to move with the children to Hungary. He also sought certain changes to his child support obligations as well as a transfer of the court case to the "corresponding family court in Budapest, Hungary".

[9] In Justice Paulseth's endorsement dated June 10, 2013, she noted that according to the Family Responsibility Office, the father was in arrears of child support in the amount of more than $12,000.

[10] Justice Paulseth dismissed the father's motion and ordered the following:

(1) The father is prohibited from removing the children from the Greater Toronto Area, and

(2) The father is to pay costs to the mother fixed in the amount of $1,000.

Justice Paulseth's Orders dated October 28, 2013 and June 17, 2014

[11] On October 28, 2013 the father brought another motion before Justice Paulseth. In that motion he sought further changes to the parenting of the children as well as changes to the "unfair child support orders" previously made by the courts.

[12] Justice Paulseth made an extensive order, including:

(1) Confirming sole final custody to the mother;

(2) Specifying father's access time;

(3) Confirming the June 10, 2013 order prohibiting father from removing the children from the Greater Toronto Area;

(4) Otherwise dismissing father's motion; and

(5) Costs payable by father to mother in the amount of $1,000

Justice Paulseth's Order dated August 12, 2014

[13] The mother subsequently brought an urgent motion before Justice Paulseth, alleging that the father was planning to remove the children from the court's jurisdiction, or that he had already done so. The mother sought an order for supervised access to the father.

[14] The matter came before Justice Paulseth on July 21, 2014.

[15] It appeared that the father had removed the children from Toronto and taken them to Hungary.

[16] On that date Justice Paulseth made an order requiring him to comply with the earlier non-removal order, and an order requiring the father to immediately return the children to the mother.

[17] Justice Paulseth adjourned the matter to August 1, 2014, in order to give the father some time to return the children to Toronto.

[18] The matter then returned to court before Justice Sherr on August 1, 2014. It appeared that by that date, the father had in fact brought the children back to Toronto. However, he had not returned them to the mother. Justice Sherr ordered the police to locate and apprehend the children and deliver them to the mother.

[19] On August 12, 2014, the matter returned before Justice Paulseth. On that date the court heard oral evidence and submissions, following which the court made a final order which included the following:

(1) The father's latest Motion to Change is dismissed;

(2) The father is to have no access to the children;

(3) The father is to have no contact, direct or indirect, with the mother or the three children;

(4) The mother shall have sole custody of the children;

(5) The mother is at liberty to travel with the children and to obtain the children's passports and government-related documents, all without notice to the father and without the consent of the father;

(6) The father is found in contempt of Justice Paulseth's non-removal order dated June 17, 2014;

(7) The disposition on the contempt finding is to be addressed should the father ever appear in court; and

(8) Costs payable by the father to the mother for court attendances of July 21, and August 12, 2014, in the amount of $500, and an order that the costs were to be paid before any further steps could be taken by the father.

Justice Paulseth's Order dated March 2, 2016

[20] On August 28, 2015, the father issued yet another Motion to Change.

[21] In that Motion to Change the father sought extensive access orders, as well as a change to his child support obligations.

[22] The matter came before Justice Paulseth for determination on March 2, 2016.

[23] On that date the parties consented to an order which provided:

(1) Father to have limited, specified Skype access to the children;

(2) Father's support obligation is varied to $1,168 per month based on an annual income to him in the amount of $60,000; and

(3) Any future Motions to Change by the father must be with leave from the court and without notice to the mother.

Relief Requested in Current Leave Motion brought by Father

[24] As I noted at the outset, father is seeking leave to bring another Motion to Change. He wishes to change custody, access and child support. He also requests:

(1) The appointment of a "new case judge based on evidence given in my affidavit";

(2) The court to provide "cost free unlimited legal representation for me based on evidence given in my affidavit";

(3) The appointment of the Office of the Children's Lawyer "given the complexity of our case from our children's perspective"; and

(4) A response to the leave motion "no later than January 7, 2019".

The Test for Granting Leave

[25] The case of Rubatto v. Sandoval, 2018 ONCJ 85, provides for a two-part test for granting leave.

[26] First, the court must be satisfied that the moving party has an arguable case on the merits. More specifically, the court should be satisfied that the moving party has a prima facie case for relief.

[27] Second, the court should be satisfied that the moving party will be able to proceed with his claim, with or without conditions, such that the granting of leave will not result in an abuse of process.

Part One of the Test – The Merits of the Proposed Change Motion

[28] Section 29 of the Children's Law Reform Act provides:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. R.S.O. 1990, c. C.12, s. 29.

[29] Before the court will grant leave for the father to bring a Change Motion, the court should be satisfied that there is at least an arguable case that there has been a material change in circumstances since the making of the final custody and access orders referred to earlier in these reasons.

[30] And the court must also be satisfied that the father has an arguable case that the material change in circumstances affects or is likely to affect the best interests of the parties' children.

[31] In support of his leave motion, the father filed an 8-page affidavit. In that affidavit he details the history of his relationship with the mother and the parties' conflict dating back to 2004.

[32] He then turns to the trial which took place before Justice Sherr in 2013, following which, Justice Sherr granted sole custody to the mother.

[33] In arriving at his decision to grant sole custody to the mother, Justice Sherr observed:

The father has a controlling and dominating (if not abusive) personality and has significant difficulty separating his own interests from those of the children. He demonstrates blatant disrespect for the mother and for court orders.

[the court] remains concerned about the level of the father's anger, his controlling behaviour and his inappropriate comments to the children. It would be helpful if the father obtained counselling to deal with this emotions, but given his lack of insight, the court is skeptical that the father would positively engage in such a process. If the father continues his pattern of behaviour, the mother should seriously consider moving to the court to place restrictions on the father's contact with the children.

[34] In his motion for leave affidavit, the father makes a number of critical comments about Justice Sherr, including an assertion that the trial "might have been staged and I therefore regard it as a mistrial".

[35] The father never appealed Justice Sherr's order following the trial.

[36] In his affidavit, the father next turns to Justice Paulseth, levelling a number of highly critical comments about Justice Paulseth's handling of the father's Motion to Change Justice Sherr's trial decision.

[37] He accused Justice Paulseth of being:

(1) "utterly biased and prejudicial";

(2) "intimidating"; and

(3) [displaying] "cruelty, ignorance and disrespect".

[38] As I noted earlier, Justice Paulseth found the father to be in contempt by wilfully disobeying the court order which prohibited him from removing the children from Toronto. The father says in his affidavit the following about Justice Paulseth:

That day Judge Paulseth saw her initial prejudice more than justified and it never even occurred to the judge that I could have a number of very strong reasons for being upset and even enraged. . . . Judge Paulseth went too far and because she refused to reinstate my rights to my children in subsequent hearings during 2015 and 2016 and her decisions were reportedly premeditated . . . . I am convinced that the bias and prejudice Judge Paulseth developed should exclude her from my case going forward.

[39] Most of what the father had to say in his affidavit was a reiteration of the history of the matter and his grievances against the mother and the two judges who presided over the various proceedings between 2012 and 2016.

[40] There was very little mention of the children and, specifically, what had changed – if anything – since the date of the final orders.

[41] To the extent that the father's affidavit focuses any attention on the children, here is what the father said:

(1) While we were having our court-ordered Skye chats, I witnessed extensive and unreasonable censoring, intimidation and repression from their mother, both exercised on my children and on me. She has been giving the children the idea that it was normal that they were not supposed to freely talk to me about their feelings, to question why they could not see me, and she had also been giving them the notion that I did not pay child support when in fact I did.

(2) In essence I realized that she made covert efforts to negatively influence the children about me and my characteristics, while harshly punishing them if they questioned her, and even cutting off our Skype access if I dared to openly object [sic] her measures in front of the children or if I discussed topics that she disliked.

(3) Considering the extensive damage my ex-wife is in the process of causing to my children and to me, I have not been considering her as a legitimate custodian parent for a long time. Definitely not since she repeatedly proved herself as a family "dictator" over our Skype conversations.

(4) By now I am fully convinced that the only chance our children have to grow up as mentally healthy individuals would be to grant sole custody to me, the sooner the better. . . Bernadette has clearly proved that she is a treacherous and dishonest woman . . .

(5) Originally everyone involved agreed at a 50-50 week-over access schedule while we were working on our settlement in 2012. The children have lost uncountable opportunities for a great, prosperous and enjoyable life by forcefully excluding me from their lives. By now it's over a 1000 days and counting. I want to get all of these days back and that would largely benefit my children. For this reason I am proposing a biweekly weekend visit schedule . . .

[42] The foregoing is largely speechifying without any actual evidence whatsoever of a material change in circumstances. To the extent that it may be conceivable to suggest that anything in the foregoing constitutes a material change in circumstances, there is no evidence that any such material change affects or is likely to affect the best interests of the three children.

[43] The court is unable to conclude from the father's evidence that he has a prima facie case for relief.

[44] Nevertheless, the court will also consider whether the father's proposed Change Motion would be an abuse of process.

Part Two of the Test – Would Granting Leave Result in an Abuse of Process?

[45] As I noted earlier, Justice Sherr made some very strong comments about the father's behaviour and the course of action the father should follow before he would be in a better position to move forward with his children in a positive way.

[46] Despite these comments, not only is there no evidence that the father has assimilated Justice Sherr's comments but, on the contrary, he rails against Justice Sherr and the manner in which Justice Sherr conducted the trial.

[47] Justice Paulseth presided over the father's subsequent motions. I have read the transcript of the parties' appearance before Justice Paulseth on July 21, 2014. In that appearance, the father lied directly to Justice Paulseth by telling the court that the children were with him in Toronto, and then later in that same appearance admitting to the court that he had taken them to Hungary in direct violation of a court order.

[48] During that court attendance, the father was openly hostile and abusive to Justice Paulseth. Not only was he aggressive in his deameanour to the court, but he also openly threatened the mother. As I read the transcript of that appearance I was struck by the remarkable restraint shown by Justice Paulseth toward the father.

[49] And yet, despite this, and despite the even-handedness shown by Justice Sherr in his reasons for judgment following the trial in 2013, the father states in his affidavit that he contacted the Judicial Council to complain about both Justices Sherr and Paulseth.

[50] The father has yet to resurface so that the court can address the penalty portion following Justice Paulseth's finding of contempt.

[51] There is no evidence that the father has paid the costs ordered by Justice Paulseth.

[52] There is no evidence that the father is making his child support payments. In fact, based on the father's comments in his affidavit, the court infers that he is not making those payments or, at least, not paying what he has been ordered to pay for child support to the mother.

[53] The father's affidavit evidence does not reveal any insight or any changed behaviour from what occurred in the courtroom before Justice Paulseth.

[54] On the contrary, as I noted earlier in these reasons, the father also vents his anger and grievances against Justice Paulseth and the way he believes he was treated by Her Honour. As revealed by the earlier-noted comments the father makes about Justice Paulseth, the father sees himself as a victim of the judicial process.

[55] It is clear to this court that the father has no respect for the judicial process. He will disobey orders if it suits him to do so.

[56] The father seems to be on a campaign against the mother. He is trying to use the court process to vent his anger and to further his "controlling and dominating (if not abusive)" behaviour against the mother.

[57] He is convinced that he has been the wronged person all the way through the previous litigation, and much of the fault for that lies at the feet of the judges. It is for that reason that his leave motion specifically asks for a "new case judge".

[58] As I noted earlier, the court found the father to be in contempt. Since then, the father has clearly avoided returning to court to subject himself to the court's disposition on that contempt finding.

[59] It would be an abuse of process were the father to be afforded a hearing for the relief he is requesting when, at the same time, he is refusing to attend court to finalize the contempt disposition.

[60] As matters currently stand, in this court's view, any further litigation brought by the father would be an abuse of the court's process.

[61] Subrule 2(3) of the Family Law Rules requires the court to deal with cases justly. This requirement includes clause 2(3)(d) which mandates the court to effect justice by "giving appropriate court resources to the case while taking account of the need to give resources to other cases".

[62] The proposed Change Motion would fly in the face of this clause by permitting court resources to be allocated to a case which has no arguable merit and which would be an abuse of the court's process.

Conclusion on the Present Leave Motion

[63] In deciding a motion such as this, the court is required to exercise its discretion. The exercise of that discretion must be judicious.

[64] I have concluded that in the exercise of my discretion, I must refuse the father's request for leave to bring a Change Motion. I have reached that conclusion for three reasons:

(1) The proposed Change Motion is without demonstrable merit;

(2) The proposed Change Motion would be an abuse of the court's process; and

(3) The combined effect of (1) and (2) would be to grant judicial resources to a case which would be contrary to the intent of clause 2(3)(d) of the Family Law Rules.

[65] The father's motion for leave is dismissed.

Future Change Motions by the Father

[66] In the event the father seeks any further relief from the court pertaining to the mother or the children, the court will require the father to seek leave from the court, without notice to the mother.

[67] In deciding whether to grant leave, the court will likely take a number of factors into consideration. Without tying the hands of this or any other court that may consider the father's leave motion, the court will likely consider the following, at a minimum, before deciding whether to give the father permission to proceed for any requested relief:

(1) Whether the father has presented himself to the court to be dealt with in respect of the court's contempt finding;

(2) Whether the father has demonstrated by his actions both insight and a willingness to obtain counselling as suggested by Justice Sherr;

(3) Whether the father has paid all outstanding costs orders;

(4) Whether the father has complied with his child support obligations, as verified by a statement of arrears which he should be able to obtain from the Family Responsibility Office and which would form part of his leave motion; and

(5) Whether the father has obeyed all other court orders previously made and which continue in force as at the date of his leave motion.

[68] I wish to be clear that the foregoing enumerated considerations are intended as a road-map for the father. They are not to be interpreted as court-ordered pre-conditions for this court, or any other court, which may be asked to consider a future leave motion brought by the father.

[69] Notwithstanding that the mother did not participate in this proceeding, the court staff shall send her a copy of these reasons.

Released: December 19, 2018

Signed: Justice Robert J. Spence