Family and Child Services of Lanark, Leeds and Grenville v. Purdy

CITATION: Family and Child Services of Lanark, Leeds and Grenville v. Purdy, 2022 ONSC 6715

DIVISIONAL COURT FILE NO.: 560/22

DATE: 20221129

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Family and Child Services of Lanark, Leeds and Grenville (Applicant/Responding Party)

AND:

Mark Callwood (Respondent/Moving Party)

AND:

Matthew Callwood, Cinthia Purdy, and Agathe Perralte (Respondents/Responding Parties)

BEFORE: O’Brien J.

COUNSEL: Mark Callwood, Self-Represented

B. Fisher, for Family and Children’s Services of Lanark, Leeds and Grenville

D. Danielson, for Cinthia Purdy

J. O’Reilly, for the Office of the Children’s Lawyer

HEARD: In-Writing

ENDORSEMENT

[1] The responding party in this matter, Ms. Purdy, filed a written request for an order pursuant to r. 2.1.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The moving party, Mr. Callwood, contacted the Court to initiate a motion for leave to appeal the interim order of Johnston, J. dated September 28, 2022. In his endorsement, Johnston, J. indicated that Mr. Callwood had attempted to file a motion seeking three heads of relief: (1) leave to file additional evidence to a motion recently argued regarding the responding party, Ms. Purdy; (2) formal review of the current evidence and new supporting evidence; and (3) leave to bring a contempt motion finding Ms. Purdy in contempt and ordering her to pay $5,000 in costs. Johnston, J. denied Mr. Callwood permission to bring the motion on the basis that the relief sought arises out of a motion already argued and that was under reserve. He noted that there was no merit to an application that the evidence Mr. Callwood sought to introduce be permitted as “fresh evidence” upon a matter already argued.

[3] By e-mail dated October 15, 2022, the responding party, Ms. Purdy advised that she took the position the motion was frivolous, vexatious, and an abuse of process. She submitted it was a proper case for the Court to dismiss Mr. Callwood’s motion under r. 2.1.01 of the Rules of Civil Procedure. Ms. Purdy submitted that Mr. Callwood raised an evidentiary issue regarding a motion that was still under reserve. In other words, in her submission, even if Mr. Callwood’s proposed appeal had merit, it would be premature.

[4] After receiving this e-mail, the Court wrote to the parties attaching a notice issued by the Registrar pursuant to r. 2.1. The cover e-mail indicated that the Court was considering dismissing the motion because it appeared on its face to be frivolous, vexatious or otherwise an abuse of process of the Court. Mr. Callwood was advised he had 15 days to provide submissions on the issue.

[5] After providing the notice and cover e-mail, the Court received three e-mails from Mr. Callwood. In the first e-mail, dated October 18, 2022, he wrote among other things, “[a]sk the Justice to call me directly for what it is they can’t read… the evidence and submissions before you are quite clear and say it all…If she needs more assistance maybe a teleconference is appropriate because arguing an appeal via e-mail is inappropriate.” He also wrote “CINTHIA PURDY SWORE FRAUDULENT AND FALSE AFFIDAVITS AND MY MOTION THAT WAS DECLINED PAINTS A QUITE CLEAR AND INTENTIONAL PICTURE OF THAT.” (all capitals in original).

[6] Mr. Callwood also provided two e-mails dated November 1, 2022. One e-mail attached a letter. The other attached various audio recordings, entitled Exhibits A to D, though their source and context is not clear. In the letter, Mr. Callwood reiterated his position that “an email chain is not the forum to argue any Appeal especially one of this magnitude and the seriousness of the allegations alleged.” Mr. Callwood made further statements related to his position that the court was misled by false evidence. He wrote as follows:

The Respondent Cinthia Purdy brought affidavits before the Superior Court of Justice in Brockville and Cornwall BY FRAUD, and I have included them for the purpose of the Appeal. THIS APPEAL IS ARGUING THAT A CRIMINAL OFFENSE WAS KNOWLINGLY AND INTENTIONALLY COMMITED AND THAT THE COURT WAS MISLEAD WITH SUCH EVIDENCE TO OBTAIN A FRAUDULENT RESTRAINING ORDER AND THEREFORE MUST BE DISMISSED. See it sucks when you lie in one Court and lie in the next and you just can’t seem to keep your story straight.

[7] He, also among other things, denied allegations of domestic violence, asked the Court to dismiss the attempt to quash his appeal, and requested the Court to schedule an urgent conference.

[8] By e-mail dated November 7, 2022, the Court sent directions to the parties offering Mr. Callwood a further opportunity to address its concerns. After summarizing the steps to that point pursuant to the r. 2.1 procedure, the directions provided as follows:

A case conference is not appropriate in the context of a process pursuant to r. 2.1. In the material provided to the Court to date, Mr. Callwood has not provided a substantive response to the reason the r. 2.1 notice was issued. Specifically, the Court is concerned the motion for leave to appeal is frivolous, vexatious and an abuse of process because:

(a) Mr. Callwood is seeking leave to appeal a decision denying his request to review and file new evidence in a motion that was already argued but in which a decision had not been released. The motion is under reserve.

(b) The Court is concerned that the matter is premature given that the decision on the motion has not been made.

(c) Further, once the decision is made, there is an ability to seek leave to appeal that decision.

The Court is offering Mr. Callwood a further opportunity to address its concern that the matter is premature on its face and therefore without merit. He shall provide any further submissions to the Court by November 16, 2022.

[9] Mr. Callwood then responded with a further e-mail requesting a case conference and denying that the matter is under reserve or premature. However, in his e-mail, Mr. Callwood acknowledged that the purpose of the motion from which he sought leave to appeal was to provide the court with information he received after a prior motion was heard. Mr. Callwood subsequently provided the court with further submissions in which he requested a case conference and provided his position on affidavit evidence previously sworn by Ms. Purdy.

[10] This court may stay or dismiss the proposed motion under r. 2.1.02(1) if it appears on its face to be frivolous, vexatious or otherwise an abuse of the process of the court.

[11] Rule 2.1 “should be interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8, quoting Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, 343 O.A.C. 87, leave to appeal refused, [2015] S.C.C.A. No. 488, at paras. 7-9; Persaud v. Estate of Rita Persaud, 2022 ONSC 2503, at para. 13.

[12] However, r. 2.1 should only be used in the clearest of cases. The abusive nature of the motion must be clear on its face and there must be a basis to support resort to the attenuated process under r. 2.1: Khan v. Krylov & Company LLP, 2017 ONCA 625, at para. 8, citing Scaduto; Persaud, at para. 14.

[13] In the context of a premature application for judicial review of an order of the Law Society Tribunal, Corbett J. recently stated: “[I]f the application is doomed to fail because it is premature, then the parties and the court should be spared the expense, time and potential delay involved in the application process”: Isaac v. Law Society of Ontario, 2021 ONSC 8265, at para. 13.

[14] I find Mr. Callwood’s motion for leave to appeal to be doomed to fail. Mr. Callwood has raised issues with the evidence on a motion that has not yet been decided by the Court. He wishes to review that evidence and also lead new evidence on a new motion with the intention of impacting the outcome of a motion already heard and under reserve. Although r. 25(19) of the Family Law Rules, O. Reg. 114/99 permits a party to seek to have an order changed where it was obtained by fraud, in this case, no order has been made nor has a decision been released. In addition, Mr Callwood did not seek to raise a mistake as referenced in r. 25(19)(b) but sought to file substantial further evidence and to seek new relief. There is no merit to the position that this Court should grant leave to appeal from a decision dismissing this motion when the underlying motion is under reserve. It is open to Mr. Callwood to raise his issues by way of a motion for leave to appeal once the decision on the underlying motion is released.

[15] Therefore, the motion for leave to appeal is dismissed pursuant to r. 2.1.02.

Date: November 29, 2022