SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FL-01-2117-5
DATE: 2012/02/24
RE: PETER KARL ROSCOE- Applicant v. KENDRA ROSCOE- Respondent
BEFORE: RATUSHNY, J.
COUNSEL:
Peter Karl Roscoe, Self-Represented
No appearance, for the Respondent
HEARD: February 22, 2012
E N D O R S E M E N T ON MOTION FOR LEAVE
[ 1 ] Mr. Roscoe, the applicant, requests leave to commence a motion for access to his son and for spousal support. He brings this motion for leave and without notice to the respondent, as required by the decision of Power J. released November 29, 2005 (the “Power Decision”), at paragraph 29, that declared him to be a vexatious litigant.
[ 2 ] Mr. Roscoe correctly points out that as a result of a decision of the Ontario Court of Appeal released June 29, 2007, paragraph 29 (c) of the Power Decision, the requirement that he post security for costs in the amount of $5000.00 before commencing any court proceedings on issues arising out of his marriage to the respondent or his rights as a parent, has been deleted.
[ 3 ] The subject matter of Mr. Roscoe’s intended motions, if leave were to be granted, has changed since the filing of his Notice of Motion on February 9, 2012 for the motion for leave before me. In that Notice of Motion he requested leave to bring a motion regarding spousal support and access and he repeated these requests in his oral submissions. However, in his written materials he also requested an order rescinding the requirement for leave imposed by the Power Decision. While Mr. Roscoe appears to have abandoned that latter request in his oral submissions before me, it remains relevant as explained below.
[ 4 ] For Mr. Roscoe to be able to seek leave he is required by the Power Decision, at paragraph 29, subparagraphs (d) and (h), to file a copy of the Power Decision and to have paid all costs orders made against him.
[ 5 ] He has complied with the former requirement as to filing, however, except for one reference to costs in his materials there is no evidence before me as to whether Mr. Roscoe has paid the respondent all outstanding costs orders made against him. The one reference to costs that I have been able to discover is a statement by him in his affidavit sworn December 1, 2011 in paragraph 4 that “The respondent was paid support and costs in full in February and June 2011”. A bald statement such as this, however, and without confirmation from the respondent, does not amount to evidence of payment of costs orders.
[ 6 ] Mr. Roscoe last brought motions for leave, referring to them as “Motion for Leave I” and “Motion for Leave II”, that were heard by Warkentin J. on January 6, 2012. His request then was for leave to file responding materials to the respondent’s motion for lump sum child support, to file his cross-motion for retroactive variation of child support, for an order to have the Office of the Children’s Lawyer appointed, to file a motion for variation of access, to file a motion for contempt by the respondent regarding access and to file a motion for spousal support.
[ 7 ] Warkentin J., by an endorsement dated January 6, 2012, granted Mr. Roscoe leave to file the responding materials referred to above, to file his cross-motion for retroactive variation of child support and to ask the court to involve the Office of the Children’s Lawyer regarding his access rights. She did not grant him leave to file a contempt motion or a motion for spousal support.
[ 8 ] Mr. Roscoe informs me that his motions for leave before Warkentin J. were the first motions for leave brought by him since the Power Decision.
[ 9 ] I find on a review of Mr. Roscoe’s materials that his motion for leave before me treads the very same ground as was before Warkentin J. There is no new evidence before me to justify a re-consideration of her denial of leave on the issue of spousal support. Nor is there any new evidence for me to grant leave to bring a motion for access when Warkentin J. already dealt with this issue and granted Mr. Roscoe leave to request the court on the respondent’s motion to involve the Office of the Children’s Lawyer to assist with his access rights.
[ 10 ] I find, therefore, that Mr. Roscoe has recently had these leave issues judicially determined such that they are res judicata or, in other words, they are matters that have already been judicially determined on the same factual basis.
[ 11 ] I conclude that by this “Motion for Leave III” before me, Mr. Roscoe is, in effect, appealing the same motions already considered by and ruled upon by Warkentin J. on January 6, 2012 because he disagrees with those rulings as he stated in his Notice of Motion filed February 9, 2012 and wishes another consideration of them.
[ 12 ] Without new evidence and also without any proof of payment of all costs orders as required by the Power Decision, I find that Mr. Roscoe is not entitled to any variation of the Warkentin J. rulings on leave.
[ 13 ] By way of an additional comment regarding Mr. Roscoe’s request in his Notice of Motion to rescind the requirement for leave, that leave requirement was imposed as a control against frivolous and vexatious claims brought by him that amount to an abuse of process (Power Decision, at paragraph 27). As I have concluded that Mr. Roscoe’s motion before me comes as a result of his disagreeing with the results of a recent and similar motion before Warkentin J., the wisdom of continuing the requirement for leave is underscored.
[ 14 ] Mr. Roscoe’s motions for leave are, therefore, dismissed.
Justice Lynn Ratushny
DATE: February 24, 2012
COURT FILE NO.: FL-01-2117-5
DATE: 2012/02/24
SUPERIOR COURT OF JUSTICE - ONTARIO RE: PETER KARL ROSCOE- Applicant v. KENDRA ROSCOE- Respondent BEFORE: Ratushny, J. COUNSEL: Peter Karl Roscoe, Self-Represented No appearance, for the Respondent ENDORSEMENT ON MOTION FOR LEAVE RATUSHNY J.
DATE: February 24, 2012