COURT FILE NO.: FC-04-FL-1767-2
DATE: 2012/11/13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: D.Q. and T.Q., Applicants/Responding Party
AND
R.A., Respondent/Moving Party
BEFORE: M. Linhares de Sousa J.
COUNSEL: Steven Greenberg, for the Applicants
R.A., Self-Represented
HEARD: October 15 and 16, 2012
ENDORSEMENT
INTRODUCTION
[1] The Respondent/Moving Party, R.A., brings this motion to change the existing order of Sheffield J., dated November 5, 2007, upholding the orders of Lalonde J., dated December 13, 2006 and April. 27, 2007, with respect to custody of two children, A.A.G., born […], 1994, and N.A.G., born […], 1995. Mr. R.A. also seeks unsupervised access to three children; J.A.G., born […], 1999, T.A.G., born […], 2000, and T.G., born […], 2001, who are in the custody of the Applicants/Responding Parties.
[2] Mr. R.A. also seeks a change in his obligation to pay child support with respect to the five children. Mr. R.A. seeks an order reducing the existing child support arrears owed by him to zero or, alternatively, by a substantial reduction. He wishes child support to be frozen. Mr. R.A. also seeks to erase certain costs awards made against him from earlier proceedings involving the same parties.
[3] The Applicants/Responding Parties, D.Q. and T.Q., contest Mr. R.A.’s motion. They take the position that there is no material change in circumstances justifying any of the changes being sought by Mr. R.A..
[4] Mr. and Mrs. Q. countermotion and request that Mr. R.A. be declared a vexatious litigant and requiring leave of the Court before he can commence any further proceedings in this matter. They also request an order that he be required to post a bond of $5,000 before he can seek such leave.
[5] Mr. and Mrs. Q. further seek an order to have all access by Mr. R.A. to the three younger children, J.A.G., T.A.G. and T.G., who are in their custody, terminated. Mr. R.A. has not exercised access since 2007.
[6] Finally, Mr. and Mrs. Q. ask for an order that Mr. R.A. be required to account for any life insurance proceeds from the death of P.A., his sister.
[7] Mr. and Mrs. Q. also seek their costs in this matter.
JURISDICTION WITH RESPECT TO THE CHILD, A.A.G.
[8] At the commencement of this motion it was agreed between the parties that A.A.G. is no longer subject to these proceedings. She is 18 years old. Mr. R.A.’s evidence was that A.A.G. is currently living with his mother, Ms. M.P.. Other objective evidence, however, revealed that this indeed may not be the case and that A.A.G. is living on her own at another address. The reasons given by Lalonde J. in his decision of December 13, 2006, indicate that the children’s paternal grandmother, Ms. M.P., in the past was an active party in this family’s litigation and sought custody of the children herself. All access by Ms. M.P. to the children was terminated by Lalonde J. on A.A.G. 27, 2007, because of her mistreatment of the children.
FACTUAL BACKGROUND
[9] The matter before me is yet another chapter in a long history of proceedings between these parties dating back to shortly after the birth of the first child A.A.G.. Mr. and Mrs. Q. are the maternal grandparents of the five children. Their daughter and the biological mother of the five children, A.G., abandoned the children to her parents in 2004.
[10] Mr. R.A. is the biological father of N.A.G., J.A.G. and T.A.G. but not the biological father of A.A.G. and T.G.. Despite this Mr. R.A. has played the role of father to all five children. His mother, Ms. M.P., commenced her efforts to obtain custody of the children when the children were still in the care of A.G. and Mr. R.A.. Ms. M.P. commenced a number of court proceedings against her son and A.G. seeking the custody of the children, all of which ultimately failed.
[11] When the children came into the physical care of Mr. and Mrs. Q. in 2004, they obtained an interim order for the custody of the five children and sought a permanent order for their custody. In that proceeding both Mr. R.A. and his mother, Ms. M.P., separately sought the custody of the five children. After a 5-day trial, Justice Lalonde awarded legal custody of all five children to Mr. and Mrs. Q., with the right to make “all major decisions including but not limited to those affecting their education, physical or mental health, safety, religion and extracurricular activities” (page 32). His lengthy reasons, which include a detailed history of the family and the family law proceedings are found at volume 6 of the continuing record, tab 1B. Justice Lalonde also had the benefit of a Children’s Lawyer’s report, to which he attached “a considerable amount of weight” (page 30) and which he noted was not disputed by either Mr. R.A. or Ms. M.P..
[12] Justice Lalonde, for the reasons given by him found that Ms. M.P. had no credibility whatsoever (page 24) and that Mr. R.A.’s credibility was “less than desirable” and that he was “still too much under M.P.’s control” (page 24). He refused their separate applications for custody of the five children. Mr. R.A. was awarded generous access to the children, alternate weekends and substantial holiday time. Mr. R.A. was also given access to all information from any professional or organization involved with his children. Telephone access was also granted him. Ms. M.P.’s access to the children was to take place during Mr. R.A.’s access time in Mr. R.A.’s home. Mr. R.A. was also ordered to enrol in and complete a parenting course or participate in parenting counselling (page 33). At paragraph 118 (page 34) Lalonde J. reserved a review of his custody and access order “in three months” … “at the request of either party.”
[13] Justice Lalonde also dealt with the issue of child support in his lengthy reasons. Lalonde J. found that Mr. R.A. had been employed with Microsoft in Toronto and earning $43,000 before he quit that job and decided to become a student taking biology courses at the University of Ottawa. Justice Lalonde found that “he was intentionally under-employed.” Nor was he convinced that Mr. R.A. had tried to find employment in Ottawa. Lalonde J. imputed an income to him of $40,000 and ordered him to pay child support for the five children based on that imputed income and in accordance with the Child Support Guidelines. Mr. R.A. was also ordered to pay his prorated share of his children’s section 7 expenses.
[14] At page 35 of his reasons Lalonde J. found that leading up to the trial before him there had been a number of child support orders awarded against Mr. R.A. and that there were substantial child support arrears which had accumulated and which he was ordered to pay on an instalment basis. Child support arrears were ultimately fixed at that time at $23,131. They have since that time accumulated to approximately $88,000 at the present time. Mr. R.A. has never voluntarily paid any support or support arrears. Since June of 2012, as a result of enforcement proceedings brought by the Family Responsibility Office, Mr. R.A. has been paying $150 per month to that office for child support.
[15] There was a costs award $26,042 given to Mr. and Mrs. Q. to be paid jointly and severally by Mr. R.A. and Ms. M.P.. These costs have not been paid.
[16] On A.A.G. 27, 2007, the matter again came before Lalonde J. His decision is found at volume 6 of the continuing record, tab 1C. Lalonde J., based his decision on the material change he found on the evidence, that the children were being divided into “two camps” and that Mr. R.A. “is not capable of protecting his children” from the mistreatment of his mother (slaps and being tied up by the ankles and wrists) and her “unusual ideas on how to handle his children” (page 6).
[17] Lalonde J. terminated all access to Ms. M.P. and Mr. R.A. was ordered to have supervised access to his five children for six months, to be supervised by the Children’s Aid Society, and to take the parenting skills course he was ordered to take in December, 2006. The matter was adjourned for six months to November 5, 2007, to permit Mr. R.A. to take the parenting course. During that period Mr. R.A. did not exercise supervised access to his children.
[18] On August 9, 2007, Mr. R.A. brought a motion for leave to appeal the two orders of Lalonde J. which was dismissed with costs. Ms. M.P. also brought a motion to have herself removed as a party to the action which was refused.
[19] Six months later, on November 5, 2007, the matter appeared before Sheffield J. The child support and supervised access order of Lalonde J. was upheld. At that time child support arrears amounted to $26,805.56. Supervised access was changed to permit supervised access to take place at the Supervised Access Centre in Ottawa as soon as the application to that Centre could be processed. Mr. R.A. did not exercise any supervised access under this order of Sheffield J.
[20] In fact, the evidence showed that Mr. R.A. has not seen his younger children, J.A.G., T.A.G. and T.G. for almost five years, since 2007.
[21] According to Mr. R.A., when he appeared before Sheffield J. in November of 2007 he had applied to medical school in Dominica but had not yet been accepted. He was accepted. Hence, in January of 2008, Mr. R.A. left Canada and commenced medical studies in Dominica, West Indies which he is still in the process of completing. Despite having left Canada to study in Dominica in January, 2008, and based on his new circumstances, Mr. R.A. brought a motion to vary the order of Sheffield J. dated November 5, 2007, and to vary the existing order for the payment of child support and child support arrears. At that time child support arrears amounted to $33,535.61. Mr. R.A. participated in that motion by teleconference from Dominica and had counsel in Ottawa. Sheffield J. dismissed Mr. R.A.’s motion to change.
[22] Mr. R.A. was ordered to pay costs to Mr. and Mrs. Q. in the amount of $ 1,500. These, too, have never been paid by Mr. R.A..
[23] The motion before me, then, is Mr. R.A.’s second motion to change his existing child support obligations brought before this Court.
MATERIAL CHANGE OF CIRCUMSTANCES WITH RESPECT TO THE CHILDREN A.A.G.AND N.A.G.
[24] Since the last order of Sheffield J. dated August 13, 2008, circumstances have changed relating to the two oldest children, A.A.G. and N.A.G.. As has already been mentioned, A.A.G. is now 18 and is no longer subject to this application. The existing child support order with respect to A.A.G. should be terminated effective on the date of A.A.G.’s 18th birthday.
[25] With respect to A.A.G., after the trial in 2007, Mr. and Mrs. D.Q. sought counselling for A.A.G. and themselves at the Youth Services Bureau and with the school social worker. Some progress appeared to be made. However, there is evidence to conclude that Ms. M.P. was secretly communicating with A.A.G., meeting with her and giving her money contrary to the existing court orders. There is also evidence to suggest that A.A.G., before she left the home of Mr. and Mrs Q., was trying to influence her younger sisters to say they did not want to live with Mr. and Mrs. Q.. A.A.G. eventually chose to join her mother in the United States for a time. This was short lived and she returned to Canada but chose not to return to the home of Mr. and Mrs. Q..
[26] According to Mr. R.A., A.A.G. is now living with Ms. M.P and continuing her education. As alluded to earlier there appears to be conflicting evidence regarding where exactly A.A.G. is living and has lived. Mr. R.A. himself has provided conflicting evidence as to where A.A.G. has been living since her return to Canada.
[27] After leaving the home of Mr. and Mrs. Q., A.A.G. remained in secret contact with her sister N.A.G.. There is also evidence to suggest that both Ms. M.P. and Mr. R.A. have had secret contact with N.A.G. and also that Ms. M.P. was giving N.A.G. money, again contrary to the existing orders. In 2011, N.A.G.’s school work began to suffer.
[28] On the evening before her 16th birthday, […], 2011, N.A.G. left the home of Mr. and Mrs. Q. in the middle of the night without their knowledge. N.A.G. left a note for Mr. and Mrs. Q. which was filed as exhibit #C3 indicating that she was going to “live with my dad” and that she “just didn’t know how to tell” Mr. and Mrs. Q.. It appears from the evidence that Mr. R.A. spent the summer of 2011 living in Ottawa studying and preparing for his medical Board examinations. In her note, N.A.G. left all of her belongings to Mr. and Mrs. Q. but wanted to make arrangements to get her documents and her bike. N.A.G. asked that Mr. and Mr. T.Q. e-mail her “ASAP” and she gave them A.A.G.’s telephone number and asked Mr. and Mrs. Q. to call A.A.G.. She signed the note twice, with “love” and “lots of love” and a number of x’s and o’s. She also assured Mr. and Mrs. Q. that she would not tell “them”, presumably, Ms. M.P. and Mr. R.A., where the Q. lived so that they would not have to move again. Clearly, the “tone” of the note is not one of anger, resentment or hate. It is one of regret, affection and love.
[29] Mr. R.A. commenced this current motion to change in December of 2011. Mr. R.A. now seeks the custody of the child N.A.G., who is now 17 years old, in view of her changed circumstances. Mr. R.A. in May, 2012 returned to the United States to complete his medical clinical rotations and will probably be there for the next year or so.
[30] Mr. R.A. is also seeking unsupervised access to his three younger children during the breaks from his medical studies and when he is able to return to Canada. He also seeks unfettered telephone access to them. In his written material Mr. R.A. seeks access to the children by his mother, Ms. M.P.. Mr. R.A. also seeks an order that would permit his two older daughters A.A.G. and N.A.G. to visit with their younger sisters, unsupervised.
[31] While he denies that his mother ever mistreated his children, as has been found in the past, Mr. R.A. proposes that his visits with the children take place in the home of some close friends, a Ms. M.L., who is a close friend of his mother, and a Ms. D.H., who is a family friend, although he did not know her address in Barrhaven.
[32] According to the evidence of Mr. R.A., N.A.G. is living now with his mother Ms. M.P. while he continues his medical clinical rotations in the United States. He also denies that he and his mother did not respect the existing court orders. His plan of care for N.A.G. is that she be in his custody but that she continue to live with his mother who will have her daily care until Mr. R.A. finishes his medical studies and training in the United States and can return to live and work as a medical doctor in Canada. Mr. R.A. anticipates that this will be sometime in late 2013 or early 2014. In view of Mr. R.A.’s financial circumstances which will be discussed below, it will be Ms. M.P. who will be financially responsible for N.A.G..
[33] There was no evidence presented by Ms. M.P.. There was no evidence from her to indicate that she is willing and able to provide day-to-day care for N.A.G. while her father studies in the United States. There was no evidence to indicate that, in addition to providing financially for her son’s medical studies and supposedly supporting A.A.G. while she finishes her education, she is also able to provide financially for N.A.G.. Nor is there any evidence as to how she is able to do this.
[34] According to Mr. R.A., N.A.G. is very affectionate towards him and wishes to stay in his care. In August of 2012 his mother changed her residence. N.A.G. has her own room in this residence. Pictures of N.A.G.’s room were provided by Mr. R.A.. Mr. R.A. also indicated that A.A.G. also has her own room in this residence. Ms. M.P., as she did in the past, rents her accommodation, under some unclear circumstances which Mr. R.A. could not fully explain, a rooming house/retirement home for adults with challenges.
[35] According to Mr. R.A., N.A.G. is doing well in school now despite her previous bad school year when she was last living with Mr. and Mrs. Q.. She is involved in volunteer work. N.A.G.’s most recent report card was provided by both parties.
[36] The evidence relating to N.A.G.’s school work for her last two years show mixed results (see exhibit # 4 and school report provided after argument on motion terminated). It is evident that while overall she did well in grade 11 and 12, she continues to struggle with certain subjects. There are also a number of lates and absences shown on her report card for both years.
[37] Mr. R.A. has not made any submissions with respect to the question of access to N.A.G. by Mr. and Mrs. Q..
[38] It is the position of Mr. and Mrs. Q. that N.A.G. was unduly persuaded to do what she did and in the way that she did it by her older sister, Mr. R.A. and Ms. M.P.. They contest Mr. R.A.’s claim for custody of N.A.G.. They submit that N.A.G. may indeed return to live with them.
DISPOSITION WITH RESPECT TO N.A.G.
[39] Any decision relating to custody of and access to N.A.G., while she remains a minor, is to be made with her best interests in mind. Given her age, her wishes and preference are to be given substantial weight. And it may indeed be the case that by her move N.A.G. has expressed, loud and clear, her preference.
[40] The evidence regarding her current living arrangement and financial support remains “murky”. The fact that Mr. R.A.’s plan of care is not to care for his daughter himself is troubling, as is the fact that the person who will be caring for her on a daily basis during Mr. R.A.’s absence, Ms. M.P, was found in the past by this Court to have mistreated her grandchildren and involved them in the dispute she has carried on with Mr. and Mrs. Q. for a number of years. On all of the evidence including the way N.A.G. left her home with Mr. and Mrs. Q., I am persuaded that both Mr. R.A. and Ms. M.P. played a substantial part in N.A.G.’s recent move to live with Ms. M.P, despite Mr. R.A.’s protests to the contrary.
[41] For that reason this Court seeks the assistance of an independent child’s counsel to ascertain the true wishes and preferences of N.A.G.. Both parties were content to have the Office of the Children’s Lawyer be involved to ascertain the true wishes and preferences of N.A.G. and to report back to the Court. The Office of the Children’s Lawyer is requested to represent the interests of N.A.G. in this case for the sole purpose of reporting to this Court on the question of N.A.G.’s true wishes and preferences. The parties are ordered to cooperate to sign all necessary documents so that this can be done as quickly as possible.
[42] Consequently, N.A.G.’s legal custody shall remain with Mr. and Mrs. Q. until this Court has had the benefit of that report from the Office of the Children’s Lawyer and can make a final decision. The issue of N.A.G.’s legal custody is therefore reserved by me, until that report is received. At that time the parties will have the opportunity to make brief submissions before me on that report. If the Office of the Children’s Lawyer chooses not to be involved in this case and the parties provide me with the letter to that effect, I will then make my decision regarding the question of N.A.G.’s legal custody on the evidence before me.
ACCESS TO J.A.G., T.A.G.AND T.G.
[43] With respect to the access to J.A.G., T.A.G. and T.G., Mr. R.A. submits that he has completed his parenting course. He seeks unsupervised access to his three younger daughters when he can return to Ottawa from his clinical rotations in Chicago during the holidays and during his school breaks. Mr. R.A. never had any supervised access under the existing order before making his decision to move to the Dominica. An issue was raised on the evidence as to whether Mr. R.A. was able to do his clinical rotations in Canada which he maintains he cannot. In any event, he may be away for approximately another year or so. The evidence also showed that as a result of his decision to pursue his medical training and career, Mr. R.A. has not seen his younger daughters for almost five years. That length of absence alone, from his daughters’ lives convinces me that any access should resume slowly. It should also take place under controlled circumstances that respects the rights and obligations of Mr. and Mrs. Q. as the legal guardians to these girls. The evidence raises grave doubts about whether Mr. R.A. is able to do this, which also justifies supervised access for a period of time.
[44] It is therefore ordered that Mr. R.A.’s access to his younger three daughters shall remain supervised by the Supervised Access Centre at his expense, with the arrangements to be made by him when he is able to attend such visits. Visits shall be once a week when Mr. R.A. is able to attend those visits at a time when the Supervised Access Centre can accommodate such visits and as long as they do not interfere with any pre-arranged plans that Mr. and Mrs. Q. may have for the children. Mr. and Mrs. Q. should receive as much advance notice of these visits as is possible. Mr. and Mrs. Q. are to cooperate to do all that is in their power to permit these visits to take place. There will not be any telephone access.
[45] There has been no evidence to demonstrate any material change in circumstances with respect to Ms. M.P.. There will be an order confirming the orders of Lalonde J., dated May 15, 2007, and Sheffield J., dated November 5, 2007 and August 13, 2008, that Ms. M.P. shall have no access to J.A.G., T.A.G. and T.G..
[46] With respect to access to J.A.G., T.A.G. and T.G. by A.A.G. and N.A.G., there is no question that the children should be able to see their older siblings as long as A.A.G. and N.A.G. also respect the rights and obligations of Mr. and Mrs. D.Q. as the legal guardians of the younger girls. On the evidence they have not received good examples of this respect from both their father and Ms. M.P.. Despite this, Mr. and Mrs. Q. indicated their willingness to have A.A.G. and N.A.G. visit the younger girls in their home and under their supervision.
[47] There will therefore be an order that A.A.G. and N.A.G. are free to visit their younger siblings in the home of Mr. and Mrs. Q. every two weeks, at a time and for a duration agreed to by Mr. and Mrs. Q. and under their supervision. While in the home of Mr. and Mrs. Q. both A.A.G. and N.A.G. are to treat Mr. and Mrs. Q. with respect and respect their grandparent’s direction while in their home, failing which access may be terminated by Mr. and Mrs. Q.. This access is to continue until further order of the Court or until the parties can agree otherwise. There will not be any telephone access.
DISPOSITION WITH RESPECT TO CHILD SUPPORT
[48] The evidence showed that Mr. R.A. has zero income. Since March, 2012 he has been paying $150 per month to the Family Responsibility Office as a result of their enforcement proceedings. Mr. R.A. submitted that he thought he might be able to pay $200 per month towards his child support obligations with some sacrifice. The evidence showed that Mr. R.A. has not made any voluntary payments of this child support obligations. He does appear to make a voluntary monthly payment of approximately $150 per month on an insurance policy on the life of Ms. M.P..
[49] The arrears of child support as shown in exhibit #3 amount to $87,851.89 as of November 2, 2012. In addition, Mr. R.A. owes, with a portion also owed by his mother, some $46,000 in costs awarded by this Court which remain outstanding and which have been unable to be collected.
[50] It was Mr. R.A.’s evidence what while carrying out his medical studies in Dominica to the present time he has been unable to be employed and earn an income. His studies have been and are funded by his family, namely his mother and his sister, P.A., and from loans and donations from friends. There was evidence to indicate that Mr. R.A. currently lives with a friend, a Ms. C.B. who, is providing full rent and food for Mr. R.A. while he completes the last stage of his medical studies. Ms. C.B.’s evidence was that she is providing this support to Mr. R.A. as a loan, which will be added to other loans which she has given him. Mr. R.A. anticipates that he will owe approximately $100,000 to $125,000 in loans by the time he completes his medical training.
[51] Mr. R.A. has recently lost the financial support of his sister, P.A., who recently died. Upon her death he was the beneficiary of a little over $7,000 from an RRSP belonging to his sister. This money was used by him to pay his recent education costs and fees. None of it went to child support. According to the evidence of Mr. R.A. he requires only approximately another year or so to complete his medical studies and training and before he anticipates earning an income as a doctor.
[52] Mr. R.A. requests that his support payments be frozen and that the child support arrears be substantially reduced until he can begin to work as a medical doctor. He also asks that the costs award outstanding against him be reduced.
[53] In order to succeed on this portion of his motion Mr. R.A. must show that there has been a material change in his circumstances since the orders were granted. On this legal ground Mr. R.A.’s motion must fail.
[54] The existing child support awards were granted when Mr. R.A. was a student at the University Ottawa preparing to apply to medical school and when he was found to voluntarily be underemployed. Lalonde J. found as follows at page 36 in his reasons for his decision dated December 13, 2006:
… I also find that R.A. did not act responsibly in quitting a $43,000 job in Toronto with Microsoft and upon arriving in Ottawa took up biology courses at Ottawa University. A responsible father cannot quit a job when he has five children to support. By October 2004, his children had been in Ottawa with his mother M.P. for two months and with D.Q. for almost five months. The least he could do was help financially. There are no reasons that justify his conduct in becoming a student when he has five children to feed. I find that he was intentionally under-employed and I am not convinced that he tried to find employment in Ottawa.
[55] Lalonde J. ordered child support based on an imputed income of $40,000, an income Mr. R.A. appeared able to command in his past employment.
[56] When Mr. R.A. came before Sheffield J. in November 2007, he had applied to medical school and was awaiting his acceptance to medical school. From the evidence he was at that time still voluntarily under employed. The next time Mr. R.A. came before this Court to change the existing child support order, in August of 2008, he had already commenced his medical studies and was living in the Dominica. He was still under employed, had no income and was living on the largesse of his family and friends.
[57] The evidence regarding Mr. R.A.’s circumstances today are that he is still completing his medical studies and training. There is no question that he is closer to finishing his medical studies and training than he was in 2006, 2007 and 2008. He is still under employed. There has been a passage of four years and child support arrears have tripled. Surely, Mr. R.A. could reasonably and easily have foreseen that, if he continued to be under employed as he has chosen to be, his arrears of child support would increase to the level they are today.
[58] He maintains that he is pursuing his medical studies to ultimately provide his children with a better life. By the time Mr. R.A. is finished his medical training, according to his evidence, three of his five children will be adults and Mr. and Mrs. Q. will have solely financially supported these children.
[59] In the final analysis, I cannot not find on the evidence that, since the order of Sheffield J., dated August 13, 2008, there has been any material change in Mr. R.A.’s circumstances and determination to remain under employed in the face of a child support order of this Court, so as to justify a change in the existing child support award for the remaining four younger children of this family. The amount of $40,000 remains the only evidence of Mr. R.A.’s past earning capacity and that remains a reasonable income, grounded on the evidence, to be imputed to him until he can demonstrate any other earning capacity in the medical field. I also agree with the reasons given by Lalonde J. for imputing an income to Mr. R.A. for the purposes of child support. Child support will therefore be ordered to continue to be paid by Mr. R.A. for four children in accordance with the Child Support Guidelines, based on his imputed income of $40,000 per annum until further order of this Court.
[60] In addition, the evidence does not support the conclusion that any change should be made to the existing level of child support arrears. Mr. R.A. has voluntarily chosen to let the child support arrears accrue and made no voluntary payments towards them until collection proceedings were brought against him and he was in jeopardy of losing some official documents, such as a driver’s licence or passport. On the evidence, Mr. R.A. has not demonstrated any good faith in trying to meet his child support obligations and to respect the child support orders of this Court. None of the factors which might persuade this Court to reduce the existing child support arrears in favour of Mr. R.A. exist in this case. The existing child support arrears, as found in exhibit # 3 filed at this trial shall remain. Furthermore, Mr. R.A. is ordered to pay the existing level of child support for five children, with the surplus over the amount payable for four children to be credited towards the payment of child support arrears.
[61] Mr. R.A. is obligated to disclose whether he has received any life insurance proceeds from the death of his sister, P.A., and if so, to account for those proceeds and to pay them forthwith towards the support arrears. Such disclosure is to be made forthwith to Mr. and Mrs. Q.’s counsel.
OUTSTANDING COSTS AWARD
[62] This Court has no jurisdiction to change the costs awards which remain outstanding against Mr. R.A. and his mother, as he has asked, nor am I persuaded to do so.
THE QUESTION OF DECLARING MR. R.A. A VEXATIOUS LITIGANT
[63] As the history of this case demonstrates, this motion is one of many which Mr. R.A. has brought against Mr. and Mrs. Q., all of which were unsuccessful. Numerous times he has been ordered to pay costs to Mr. and Mrs. Q. and has not done so. Based on the decision of Henry J. Re Lang Michener and Fabian 1987 CANLII 172 (ON SC) rendered on April 15, 1987 and provided by counsel, which establishes the criteria the Court should consider in declaring a party a vexatious litigant, I am satisfied that Mr. R.A.’s conduct before this Court comes dangerously close to vexatious proceedings, certainly as they pertain to the question of child support. However, while there is any outstanding custody and access issues relating to the children of this family, I am hesitant to declare Mr. R.A. a vexatious litigant with respect to those issues.
[64] However, I make the following order. Mr. R.A. is prohibited from bringing any further proceedings in this Court relating to the question of child support or arrears of child support until he has paid all of the outstanding costs award against him and has provided this Court with proof of such payment of costs. In the event that he pays his outstanding costs award and wishes to initiate any proceedings before this Court, Mr. R.A. will be obligated to post a bond of $5,000 before commencing his proceedings.
COSTS
[65] The final issue to be determined is that of costs. Mr. and Mrs. Q. shall have two weeks from the release of these reasons to serve and file their written submissions on costs, including any offers to settle which they may have made. Mr. R.A. shall then have two weeks from that date to serve and file his written submissions on costs, including any offers to settle which he may have made. Mr. and Ms. Q. shall then have one week from that date to serve and file a reply if they wish to do so.
M. Linhares de Sousa J.
Date: November 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: D.Q. and T.Q., Applicants,
AND
R.A., Respondent,
BEFORE: M. Linhares de Sousa J.
COUNSEL: Steven Greenberg, for the Applicants/Responding Party
R.A., Self-Represented
ENDORSEMENT
M. Linhares de Sousa J.
Released: November 13, 2012