ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-10-364255
DATE: 20120524

Pursuant to the order of Paisley J. made January 31, 2011, publication of the names of the parties and the children and of information that has that effect is prohibited.

BETWEEN:

L.W. Applicant – and – A.W. Respondent

Lorna M. Yates, for the Applicant
Self-represented

HEARD: April 12, 2012

KITELEY J.

[ 1 ] This is a motion by the Applicant for an order for the following: striking out A.W.’s Answer and Claim; in the alternative, striking out all non-parenting claims; in the further alternative, staying his Answer and Claim; a finding that A.W. is a vexatious litigant and restraining him from commencing or continuing any proceeding without obtaining leave on specified conditions; and costs. In his responding materials, A.W. opposes that motion and asks that it be dismissed or stayed; and he asks for leave to bring a motion for directions.

Family Background

[ 2 ] The parties married in 1999. Their children were born in 2001 and in 2003. They were living in the jointly owned matrimonial home in Toronto in September 2008 when A.W. lost his job due to restructuring. According to L.W., he had been an Associate Partner/Senior Software Architect earning over $150,000. Following the separation on November 1, 2008, L.W. remained in the matrimonial home with the children. In August 2009, A.W. went to Antigua. He returned in October 2010.

[ 3 ] L.W. is the Chief Financial Officer and Controller of a company. Her 2011 income was approximately $95000. According to A.W., he has searched for full time employment but has been unable to obtain employment in his field or otherwise.

Litigation Background

[ 4 ] On his return from Antigua, A.W. initiated legal proceedings in the Ontario Court of Justice that were stayed after L.W. initiated these proceedings in the Superior Court of Justice. The litigation history is fundamental to the motion brought on behalf of L.W.. The following is a summary of what has transpired.

Date
Disposition

October 12, 2010

A.W. brought a motion dealing with the children. Waldman J. concluded that the matter was not urgent and she adjourned it to November 18 th . She ordered that the children were not to be removed from the Greater Toronto Area pending further order. She ordered A.W. to pay costs fixed at $250.

November 3, 2010

L.W. filed a Form 14B motion with notice to delay the filing of an Answer because of her intention to commence proceedings in the SCJ. Waldman J. adjourned it to November 18 th .

November 17, 2010

L.W. filed an Application in the Superior Court in which she sought custody; child support; equalization of net family property and costs.

November 18, 2010

In view of the SCJ proceeding, Waldman J. stayed the OCJ proceeding.

December 30, 2010

L.W. brought an urgent motion without notice because A.W. had not returned the children. Czutrin J. made an order directing the police to locate and apprehend and deliver the children to L.W. and directed that A.W.’ access pending the return of the matter on January 6 th would be suspended. He made a restraining order against A.W..

January 6, 2011

The restraining order was modified by Perkins J. On consent it was ordered that A.W. have access on alternate weekends from Friday at 5:30 to Sunday at 7:00 p.m. provided that his mother accompanied him for all access exchanges.

January 31, 2011

The case conference had been adjourned once. On this second occasion, A.W. asked for an adjournment to retain counsel. Paisley J. refused on the basis that, given the degree of conflict, it was preferable to proceed in order to attempt to assist the parties to make some progress with respect to the issues concerning the children. He directed the parties to file form 35.1 affidavits. He noted that the Children’s Aid Society of Toronto had become involved but had written a letter indicating that they found no child protection concerns other than the risk of emotional harm if the ongoing conflict continued. He requested the assistance of the OCL and directed the parties to complete the questionnaire. He noted that the parties were at liberty to bring motions.

February 15, 2011

A.W. brought a motion returnable February 15 th for the return of some contents of the matrimonial home and a motion returnable February 17 th for a change in the parenting arrangements. Perkins J. noted that this was “a high conflict case”. He stayed those motions until A.W. attended the Family Information Session and in any event adjourned them on conditions relating to access. He stayed the balance of A.W.’ motion until after the release of any Report by the OCL and if the OCL did not accept the referral, then to a long motion date. He granted leave for questioning. He made an order restraining A.W. from bringing any further motions without leave and he directed that all motions would come before him if he was available. He noted that Czutrin J. would appoint a conference Judge when a conference was booked. He imposed restrictions on A.W. email communications with his wife’s counsel, namely to 1 email per day. He directed the police to locate, apprehend and deliver the children if required pursuant to his order.

February 16, 2011

A.W. attended the Family Information Session.

February 18, 2011

L.W. brought a motion on short notice because of an issue about compliance by A.W. with the access order. Perkins J. made a temporary order for supervised access, directed A.W. to administer certain medication to his son, and directed the police to locate, apprehend and deliver the children in accordance with the order. He asked the OCL to give this case priority. He ordered A.W. to pay costs fixed in the amount of $1855 payable forthwith. A.W. had been served but did not attend.

March 1, 2011

On A.W.’ motion, Perkins J. granted leave to move to set aside the Feb. 18 th order; gave directions about documents to be filed including providing proof that he had attended at the FIS. He directed A.W. to clear the motion date with L.W.’ counsel.

March 16, 2011

On A.W.’ motion in the Divisional Court, Ferrier J. refused his request to adjourn and he dismissed the motion for leave with costs against A.W. fixed in the amount of $5000 to be paid within 15 days.

March 17, 2011

Perkins J. noted that with respect to A.W.’ motion to set aside the order dated February 18, 2011 he had granted permission on March 1 st not appreciating that A.W. had not served his motion for permission. He ordered that all motions must be served unless urgency prevented service. He noted that A.W.’ evidence did not add anything to what was before the court on February 15 and February 18 th . He held that there were no grounds for any change. He noted that A.W. had not taken steps to get his access going again and that he should do so. He also directed him to arrange to be in a position to receive the children’s phone calls. He noted that an investigator had been appointed by the OCL. He suggested to A.W. that instead of making motions going over the same ground, he should set his priority as seeing and speaking with the children. L.W. had served an offer to settle this motion. In his endorsement, Perkins J. observed that a costs order had been made the day before, and there were other costs orders outstanding and, while he did not want A.W. to be “crushed by costs orders”, L.W., having been successful in defending the existing orders, ought not to be “crushed” by her costs. He directed A.W. to pay costs fixed at $4500 within 30 days.

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