COURT FILE NO.: F1152/07

DATE: August 2, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Lorrie Dianne Kloc, applicant

AND:

Andrezej Kloc, respondent

BEFORE: MITROW J.

COUNSEL: Hamoody Hassan for the applicant

Andrezej Kloc in person

HEARD: June 15, 2012

ENDORSEMENT

INTRODUCTION

[1] The respondent brings the following motions, that in substance primarily seek the same interim relief:

a) a motion initially returnable March 21, 2012; the order sought refers to giving notice of the return of the respondent’s motion dated April 13, 2011 and seeks an order requiring the applicant to pay child support;

b) a motion initially returnable June 15, 2012; terms of relief requested again refer to notice of return of the respondent’s motion dated April 13, 2011 and further seek child support from the applicant “retroactive to December 2010 or to start as of March 12, 2012,” a copy of all police records produced by the applicant “associated with this file,” requiring the applicant to assist in the child’s education costs and an order requiring the applicant to contribute to all s. 7 expenses for the child.

[2] The applicant brings a motion dismissing the respondent’s motions on the grounds that the court is without jurisdiction to hear those motions given this court’s previous order dismissing all claims by the respondent or alternatively staying the motions, an order that the respondent not be allowed to file any further motions or take any further proceedings pursuant to subrules 1(8), 14(21) and 14(23) of the Family Law Rules.

[3] For reasons that follow, I find that:

a) there is no merit to the relief sought by the respondent on his motions and the motions are dismissed;

b) the conduct of the respondent in this case merits an order to control the respondent’s ability to bring motions and, accordingly, there will be an order as described below to accomplish this result.

RELEVANT BACKGROUND FACTS

[4] The applicant and the respondent were married in 1988 and separated in 2007. They have one child together, Zachary Kloc, born March 26, 1994 (Zachary), who is now 18 years of age.

[5] This family law case is high conflict and the continuing record has now grown to eight volumes.

[6] The parties are both school teachers. In response to the respondent’s recent motions for child support, the applicant filed a financial statement disclosing a current income of close to $95,000 per year. However, the respondent did not file a financial statement as required by the Family Law Rules. The respondent made a claim for s. 7 expenses, including education costs, and this clearly triggered his obligation to file a financial statement. There was, however, some dated material (at tab 69 of the continuing record) filed by the respondent consisting of a letter from the London District Catholic School Board dated July 14, 2011, confirming that the respondent was on leave but with an expected return to work date of September 1, 2011. The respondent’s annual salary was stated to be $79,100.

[7] The affidavit material confirms an acrimonious relationship between the parties that has fuelled the size of the court file and has resulted in numerous motions and orders.

[8] On June 17, 2011, Marshman J. made a final order dealing with custody and access issues relating to the child Zachary. It is to be noted that this order was made on the basis of affidavit material. Both parties and the child’s lawyer had requested the court to proceed on affidavit material. Marshman J. noted that she acceded to this request with “some trepidation” given the list of 38 affidavits she was asked to review. Marshman J. ordered that the joint custody order made by Tausendfreund J. dated January 28, 2008 (an interlocutory order) shall continue on a final basis and that Zachary shall reside with each parent on alternating weeks. The police assistance order contained in an order of Campbell J. dated March 5, 2008 was terminated. The order of Marshman J. further provided that the respondent’s motion for child support and other relief and the applicant’s motion for dismissal or stay of the respondent’s motion and an order to strike his answer and claim and other relief be adjourned to a date to be set by the trial coordinator.

[9] In her reasons, Marshman J. stated she was turning the interlocutory order of Tausendfreund J. into a final order knowing it was against the wishes of the child. Marshman J. stated she was not satisfied that the child’s wishes should prevail in this case. As part of the basis of making her order, Marshman J. stated (at para. 11) that the order “denounces the father’s despicable habit of interfering” with Zachary’s time with his mother.

[10] The various remaining motions that had been adjourned by Marshman J. came on for hearing before Harper J. and pursuant to a final order dated July 21, 2011, Harper J. dismissed the claims of the respondent without prejudice to the respondent’s ability to reapply if the respondent can establish that he is in full compliance with the judgment and costs order of McGarry J. dated April 14, 2010 and October 21, 2010, respectively, requiring the respondent to pay to the applicant a total of $25,602.58 plus interest. Harper J. also ordered the respondent to pay costs to the applicant fixed in the amount of $12,000, payable forthwith, and that those costs would also have to be paid before the respondent could make any claims before the court. The basis for Harper J. dismissing the respondent’s claims included the respondent’s past conduct and failure to comply with previous orders. The order of Harper J. was appealed by the respondent to the Divisional Court and the appeal is currently pending.

[11] In relation to the judgment and costs order made by McGarry J., the following are the relevant facts:

a) The applicant (as plaintiff) commenced a separate action in the Ontario Superior Court of Justice against the respondent (as defendant) seeking general damages as a result of an assault on her by the respondent and aggravated damages for ongoing pain and suffering;

b) The trial of this action was heard by McGarry J. on March 10, 2010;

c) Based on the evidence, McGarry J. found that this was not an easy marriage, it deteriorated significantly with the impending failure of the respondent’s construction business, the respondent would demean the applicant in front of Zachary (and the applicant’s other children), neighbours and friends and there were many arguments and intimidating factors used by the respondent;

d) In his reasons, McGarry J. found that the respondent was charged with assault on the applicant and pleaded guilty, he was placed on probation with one of the provisions being non-association or communication with the applicant and, despite the order, he continued to harass the applicant through the access visits with their son Zachary;

e) The reasons of McGarry J. indicated that while the respondent asserted he was the “calming influence in the family,” the respondent at the same time acknowledged he broke his fist when striking his stepson and, further, McGarry J. noted the respondent indicated he had in fact breached the court order with respect to his son’s access visits and that the police “had been called some 20 to 30 times to enforce the court order”;

f) In dealing with the issue of credibility, McGarry J. stated “I accept the Plaintiff’s evidence where it conflicts with the Defendant’s, whom I found to be manipulative, evasive and non-responsive”;

g) McGarry J. awarded to the applicant general damages in the amount of $8,000 for the assault, which McGarry J. found “resulted in significant bruising and short-term pain”;

h) In his reasons, McGarry J. accepted “that this assault and the Defendant’s behaviour caused the Plaintiff significant emotional distress, anxiety and concern for her safety” and as a consequence McGarry J. awarded aggravated damages of $10,000. Accordingly, the total damage award was $18,000;

i) Pursuant to an order dated October 21, 2010, McGarry J. awarded costs of that action to the applicant in the amount of $7,602.58.

[12] There is no dispute that the damages and costs as ordered by McGarry J. have not been paid. The applicant complains that even though the respondent lives with his parents and has an income approaching $80,000, he has paid nothing towards the judgment and costs order made by McGarry J. Both parties were represented by counsel in the trial before McGarry J.

[13] The applicant deposes that she initially wished to advance the claim against the respondent for damages for assault within the family law proceeding but that the respondent opposed this procedure and, accordingly, a separate proceeding was commenced in the Ontario Superior Court of Justice (non-Family Court branch). (See paragraph 30 of applicant’s affidavit filed at tab 59 of the continuing record.) This is the type of claim that the Family Court would usually permit to be added to existing family law proceedings, pursuant to s. 21.9 of the Courts of Justice Act.

[14] The applicant complains that the respondent, in pursuing his appeal from the order of Harper J., brought a needless motion for leave to appeal when leave was not necessary because the order appealed from was a final (and not interlocutory) order. Pursuant to an order dated August 16, 2011, Hockin J. ordered that leave is not required for the respondent to appeal the order of Harper J. dated July 21, 2011 and that the appeal should be moved along to the Divisional Court. Costs of the motion before Hockin J. were reserved to the Divisional Court. The applicant complains in her affidavit material that in the past she has had to obtain a police assistance order and bring other motions to enforce the terms of her access with Zachary. The applicant’s allegations in this regard are corroborated by the findings of Marshman J. and also McGarry J.

[15] At the present time, the remaining issues in the Family Court deal with the property claims advanced by the applicant. There is no dispute between the parties that the sum of $85,339.87 was paid into court, representing the money from the sale of the matrimonial home. It is the applicant’s position that the money paid into court will be insufficient to compensate her for her share of the matrimonial home, damages and costs ordered by McGarry J. and the “minimum” entitlement to equalization in the amount of $38,000. This, of course, is the applicant’s position and this would be disputed by the respondent. The existing issues are framed on the basis that Harper J. dismissed all of the respondent’s claims and, if the appeal to the Divisional Court is allowed, there may well be other claims to be heard in the Family Court including child support.

THE MOTION BROUGHT BY THE RESPONDENT FOR INTERIM CHILD SUPPORT AND PRODUCTION OF POLICE RECORDS

[16] It is clear on the record that all claims by the respondent, which include child support, have been dismissed by the final order of Harper J. dated July 21, 2011. The appeal is pending. However, until the appeal has been determined, the status of the respondent’s claims is that they are dismissed. The respondent has not sought a stay of the order of Harper J.

[17] In fact, both of the respondent’s present motions refer to his motion of April 13, 2011 being brought back on for hearing. That motion sought change of principal residence for the child (this relief having been disposed of by Marshman J.), sought child support from the applicant, including s. 7 expenses, and sought delay of the upcoming trial on the basis that the respondent was in the process of receiving medical treatment.

[18] It is in fact that motion that was before Harper J. (along with the applicant’s motion) which resulted in the dismissal of all of the respondent’s claims.

[19] The respondent has no status to seek a return of that motion to claim interim child support.

[20] Even if the prayers for relief in the respondent’s two motions initially returnable March 12, 2012 and June 15, 2012 could be interpreted as standing on their own, and not in reference to the motion which was before Harper J., the fact is that in relation to child support the respondent does not have an ability to bring a motion for interim child support because his claim for child support has been dismissed on a final basis

[21] Accordingly, the respondent’s current motions for interim child support are dismissed.

[22] In relation to production of police records, this prayer for relief surfaces in the respondent’s second motion (returnable June 15, 2012) and the prayer for relief is stated as follows: “A copy of all police reports produced by the applicant associated with this file.” It is unclear whether the request is in relation to police records that the applicant currently has in her possession, or whether the request is a requirement for the applicant to obtain from the police copies of any police records involving the applicant. Giving wide scope to the relief claimed and assuming it applies to all police records either in the applicant’s possession or available to the applicant if she chose to obtain them from the police, I find that the respondent’s request should be dismissed.

[23] The respondent was unable during oral argument to articulate any reason in law why such records are relevant and ought to be produced. The only remaining litigation involves property issues (and potentially support issues if the Divisional Court allows the appeal from the order of Harper J.). All custody and access issues have been dealt with on a final basis pursuant to the aforesaid order of Marshman J. dated June 17, 2011. Those police records may have had some marginal relevance to custody and access issues but do not have any relevance to money issues involving either property or support. The respondent states in his affidavit (paragraph 27, affidavit sworn June 12, 2012) that the records would “assist the Court” in deciding future issues because the records would give a “more accurate picture of Zachary’s relationship with his parents.” This argument is bereft of merit.

THE APPLICANT’S MOTION THAT THE RESPONDENT NOT BE ALLOWED TO BRING ANY FURTHER MOTIONS OR TAKE ANY FURTHER PROCEEDINGS PURSUANT TO THE FAMILY LAW RULES

[24] The applicant submitted that she has been plagued by the respondent’s inappropriate conduct throughout the litigation, forcing her to bring motions (that she should not have had to bring) and also in responding to motions that have little or no merit.

[25] The applicant submits that the court must intervene and order that the respondent not be allowed to file any further motions or take any further proceedings because he is “a vexatious litigant” and the applicant cites subrules 1(8), 14(21) and 14(23). In oral argument, it was submitted on the applicant’s behalf that there should be no more motions brought by the respondent, except with leave, and unless the respondent pays all the money that is outstanding as ordered by the court.

[26] Subrules 1(8), 14(21) and 14(23) of the Family Law Rules provide as follows:

1(8) The court may deal with a failure to follow these rules, or a failure to obey an order in the case or a related case, by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including,

(a) an order for costs;

(b) an order dismissing a claim made by a party who has wilfully failed to follow the rules or obey the order.

14(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.

14(23) A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this subrule does not apply, and the court may on motion, in addition to any other remedy allowed under these rules,

(a) dismiss the party’s case or strike out the party’s answer or any other document filed by the party;

(b) postpone the trial or any other step in the case;

(c) make any other order that is appropriate, including an order for costs.

[27] In Molina v. Molina, [2011] O.J. No. 2287, 2011 ONSC 3030 (Ont. S.C.J.), S.E. Healey J. considered a motion by one party to strike the other party’s pleadings. That motion was grounded on subrules 1(8) and 14(23). In relying on authorities, Healey J. agreed that subrule 14(23) should not be taken lightly and that the onus is on the non-compliant party to show why subrule 14(23) ought not to apply. The court also cited a three-part test to be applied in dealing with non-compliance by a party with court orders within the context of subrule 14(23). Specifically, Healey J. stated as follows at paras. 5 to 7:

5 In Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007] O.J. No. 3264 (S.C.J.) at para. 16 the court emphasizes that subrule 14(23) should not be taken lightly, and that the onus is on the non-compliant party to show, on a balance of probabilities, why subrule 14(23) should not apply. The court notes that it would take an extraordinary event to trigger the "unless' provisions of subrule 14(23).

6 The decision in Ferguson v. Charlton, 2008 ONCJ 1, [2008] O.J. No. 486, 2008 CarswellOnt 667 (O.C.J.) sets out the approach to be taken by the courts in dealing with non-compliance by a party with court orders in the context of Family Law Rule 14(23).

• The court must ask where there is a triggering event that would allow it to consider the wording of either sub-rule 1(8) or sub-rule 14(23). That triggering event would be non-compliance with a court order in the case or a related case (sub-rule 1(8)) or an order "made on a motion" (sub-rule 14(23)).

• Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under sub-rule 1(8) or by ordering that sub-rule 14(23) does not apply. My review of the foregoing caselaw suggests that this discretion will only be granted in exceptional circumstances. In my view, the court's decision whether or not to exercise its discretion in favour of a non-complying party ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.

• Third, in the event the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy pursuant to the provisions of either sub-rule 1(8) or sub-rule 14(23). (emphasis added)

7 In Morin v. Cunningham, [2009] O.J. No. 2877, 2009 CarswellOnt 3974 (S.C.J.), the court considered and implicitly adopted the three part test set out in Ferguson v. Charlton, above, as did the court in Ragno v. Ragno, [2010] O.J. No. 2182 (S.C.J.).

[28] In relation to subrule 1(8), I find that the respondent has failed to obey an order in a “related case,” being his failure to pay the judgment and costs order of McGarry J. It is clear that the matter before McGarry J. was related because it involved the same parties and the same conduct that was also relevant within the context of the separate family law proceedings. The respondent offers little helpful or convincing evidence in the present motions as to why nothing has been paid towards the civil judgment. I place little or no weight on the respondent’s affidavit evidence as to complaints regarding the trial process in the matter heard by McGarry J. The fact is the judgment and the costs order have not been appealed. Accordingly, I find that subrule 1(8) is engaged on the applicant’s motion.

[29] In relation to subrule 14(21), there is in my view a history of conduct by the respondent which has served to add unnecessarily to the costs of this case. This includes the past conduct regarding custody/access issues and forcing the applicant to seek police assistance orders and also the findings of both Marshman J. and McGarry J. as to the conduct of the respondent.

[30] In relation to subrule 14(23), the same factual background as mentioned in relation to subrule 14(21) satisfies me that the respondent has in the past failed to obey court orders.

[31] Accordingly, on the facts, both subrules 14(21) and 14(23) are engaged on the applicant’s motion.

[32] I find it is appropriate to limit the respondent’s right to bring future motions. The issue is what conditions should attach to this order.

[33] I am mindful of the fact that Harper J. imposed a requirement that the respondent could not seek any further court orders unless he first paid all amounts owing pursuant to the orders of McGarry J. and also the costs order made by Harper J.

[34] Although the applicant urged in argument that I should impose a similar requirement as did Harper J., in my view it is inappropriate to consider making such an order until the appeal of Harper J.’s order has been dealt with.

[35] However, the court has wide discretion as to the remedies offered by the aforesaid rules. I find it is appropriate to impose on the respondent an order that he shall not bring any further motions except with leave of the court. It is also necessary to impose some conditions that relate to the material that may be filed on the leave motion. The leave motion should not turn into a motion on the merits of the proposed motion with voluminous material.

[36] In the order I am making, I am not considering the fact the respondent has failed to pay the costs order of Harper J., as that order is under appeal.

[37] I consider that the respondent has brought the present motions for child support in circumstances where he clearly has no right to bring a motion for interim child support until his appeal has been disposed of, and then only if the appeal is successful. It is clear that the respondent, who is self represented, will bring motions without merit causing the applicant to incur unnecessary legal fees. The present motions are an example. Also, within the context of the current motions, the applicant, although faced (in her view) with a motion having no merit in relation to child support, nevertheless still prepared and filed a financial statement because the Rules require same. This obviously caused her to incur unnecessary legal expenses while, at the same time, the respondent was under a similar obligation and did not bother to file an updated financial statement. The respondent also subjected the applicant to the unnecessary motion for leave to appeal.

[38] Although it is not necessary to address the respondent’s claim for interim child support in any detail on the merits (having dismissed that claim on procedural grounds), the affidavit material shows the respondent’s request is grounded to a large extent in seeking contribution from the applicant for Zachary’s anticipated post secondary education costs. The affidavit material satisfies me that the applicant has contributed to Zachary’s financial needs throughout, including working in Chatham and commuting daily from London, while maintaining her residence in the same neighbourhood in London to facilitate Zachary remaining in the same high school. There is strong evidence in the applicant’s material that she will financially assist Zachary in any reasonable post secondary education expenses without the necessity of a formal order.

[39] This court has an obligation to intervene where one party is subjected to unnecessary motions and costs by the conduct of the other party or is forced to bring motions that would not be necessary but for the conduct of the other party. In these circumstances, a court has a duty to act. This is such a case. To tolerate such conduct is to promote it. Any order made has to strike a proper balance between an offending party’s right to access to justice and an aggrieved party’s right to be shielded from the legal costs and other consequences flowing from the offending party’s unacceptable behaviour.

ORDER

[40] For the foregoing reasons, I make the following order:

1. The respondent’s motions are dismissed;

2. The respondent is prohibited from bringing any further motions in this case unless the respondent first obtains the permission of the court to bring a motion;

3. The respondent’s motion seeking permission to bring a motion must comply with the following conditions:

a) the affidavit evidence in support of the motion shall not exceed seven typed pages double spaced;

b) any exhibits to the affidavit material shall not exceed 15 pages; and

c) if the respondent has failed to pay any costs orders made against him in this case, or if the respondent has failed to pay the judgment for damages of McGarry J. dated April 14, 2010 and the costs order made by McGarry J. dated October 21, 2010, the respondent shall explain why he has failed to make those payments.

4. If the parties are unable to agree on the issue of costs of the motions, then within 30 days of the date of this order the parties shall contact the trial coordinator, who shall schedule a date before me to deal with the issue of costs and the trial coordinator may schedule the costs hearing at 9:30 a.m.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: August 2, 2012