SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 499/01
DATE: April 12, 2012

RE: HEATHER AINSLIE, Applicant

• and –

JAMES BRACKEN, Respondent

BEFORE: JUSTICE BRIAN W. ABRAMS

HEARD: April 11, 2012

COUNSEL:
HEATHER AINSLIE, Applicant, Self Represented
G. EDWARD LLOYD, Counsel for the Respondent

ENDORSEMENT ON MOTION

Background

[ 1 ] I released an endorsement dated February 22, 2012, wherein the Respondent, James Bracken (“Mr. Bracken”), was granted leave to institute a motion to change child support. Moreover, I confirmed that the vexatious proceeding component of Tranmer, J.’s Order, dated June 8, 2009, remains in effect, subject to either of the parties seeking leave of a Judge of the Superior Court of Justice to institute or continue a proceeding, which shall be determined on an issue by issue basis.

[ 2 ] In paragraph 19 of my endorsement, I specified that if and when the Applicant, Heather Ainslie (“Ms. Ainslie”), should institute a leave motion seeking to advance a motion to change child support, nothing in my decision should be taken as foreclosing or precluding her from doing so.

[ 3 ] Ms. Ainslie is before the Court today seeking leave to institute proceedings for relief that is expansive and unrelated to changing child support. Rather, Ms. Ainslie is seeking leave to effectively set aside two trial decisions, in addition to endorsements made on a number of motions in this litigation dating back many years. Notably, Ms. Ainslie has never appealed any of these decisions, including the most recent trial decision of Tranmer, J., dated June 8, 2009.

[ 4 ] To summarize the substantive relief that Ms. Ainslie is ultimately seeking, should her leave motion be granted, it is necessary to cull the claims from her Affidavit material, specifically:

(a) Damages on a full recovery basis (Paragraph 8, Affidavit of Heather Ainslie, sworn March 20, 2012.

(b) Damages for repetitious motions for abuse of the Court process. (Paragraph 25 of the Affidavit of Heather Ainslie sworn March 20, 2012)

(c) Damages for:

(i) Concealing assets, income and financial disclosure.

(ii) For filing fraudulent claims in Affidavits;

(iii) For commissioning Affidavits which counsel knew were fraudulent;

(iv) For abuse of Court process;

(v) Gaining Orders based on fraud;

(vi) Litigating in bad faith (Paragraph 60 of the Affidavit of Heather Ainslie sworn March 20, 2012).

Issue

[ 5 ] Should Ms. Ainslie be granted leave to institute a proceeding for the relief, as it is currently framed?

Positions of the Parties

[ 6 ] Ms. Ainslie contends that she should be entitled to institute a proceeding for the substantive relief set out above because, in effect, every Order made by every Justice dating back to Maranger, J.’s trial decision has been premised on fraud, Mr. Bracken’s fraud and Mr. Lloyd’s fraud. Accordingly, Ms. Ainslie asserts that any Court Order based on fraud may be rescinded.

[ 7 ] Mr. Bracken contends that Ms. Ainslie should not be granted leave to commence a proceeding because the substantive relief that she is ultimately seeking is either outside the ambit of a motion to change child support or alternatively, was already dealt with by the Court in previous Orders.

Law

[ 8 ] As I found in my endorsement dated February 22, 2012, Tranmer, J.’s Order, dated June 8, 2009 is, in effect, a vexatious proceedings Order made pursuant to s. 140(1) of the Courts of Justice Act . Accordingly, the test for leave to proceed is found in s. 140(4) of the Courts of Justice Act , where it says:

“Where an application for leave is made under (3):

(a) Leave shall be granted only if the Court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) The person making the application for leave may seek the rescission of the Order made under subsection (1) but may not seek any other relief on the application;

(c) The Court may rescind the Order made under subsection (1)…; and

(d) No appeal lies from a refusal to grant relief to the Applicant.”

Analysis

[ 9 ] I am not satisfied that Ms. Ainslie’s motion, as it is currently framed, is not an abuse of process. Further, I am not satisfied that there are reasonable grounds for the proceeding. Ms. Ainslie’s motion, as it is currently framed, contains no apparent reasonable grounds. Rather, Ms. Ainslie’s materials contain conclusory statements expressing a factual inference that she wishes the Court to make, that being that Mr. Bracken and his counsel committed fraud, without stating the underlying facts on which the inference is based. Further, Ms. Ainslie’s motion asks for relief (damages) in addition to rescission of the Orders that she contends are premised on fraud, which is expressly forbidden by s. 140 (4)(b) of the Courts of Justice Act . Moreover, the damages that Ms. Ainslie is seeking do not fall within the Schedule of Proceedings under s. 21.8 of the Courts of Justice Act , on a motion for interim or other interlocutory relief, for proceedings in the Family Court, based on her pleadings.

Held

[ 10 ] For the reasons set out above, the Applicant’s motion for leave is hereby dismissed.

Costs

[ 11 ] At the conclusion of the motion, I asked Ms. Ainslie and Mr. Lloyd to make submissions as to costs, assuming that Ms. Ainslie was successful and alternatively assuming that Mr. Bracken was successful.

[ 12 ] Ms. Ainslie requested costs of the motion in the amount of $6,000.00.

[ 13 ] Mr. Lloyd, on behalf of his client, requested costs of the motion in the range of $2,500.00 to $3,000.00.

[ 14 ] Mr. Bracken was ultimately successful in defending the motion brought by Ms. Ainslie. After considering the factors set out in Rule 24(11) of the Family Law Rules, I find that Mr. Bracken is entitled to his costs of $3,000.00 fixed and made payable forthwith. It is a serious matter to allege fraud against a party in a legal proceeding, let alone a party and his counsel, and ultimately be unsuccessful in proving the allegation. The figure for costs might have been much higher, had Mr. Lloyd asked for a greater amount of costs for his client, based on the allegations of fraud not being proven. Ms. Ainslie should bear this in mind, in the event that she initiates any future proceedings in which she alleges fraud, either against a party or counsel.

April 12, 2012 __________________________
Abrams, J.

COURT FILE NO.: 499/01
DATE: April 11, 2012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HEATHER AINSLIE, Applicant - and – JAMES BRACKEN, Respondent BEFORE: JUSTICE BRIAN W. ABRAMS HEARD: APRIL 11, 2012 ENDORSEMENT ON MOTION Abrams J.

Released: April 12, 2012