COURT FILE NO.: 123/00
DATE: 20121122
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IRENE THERESA KROPF
Applicant
v.
TIMOTHY JOHN KROPF
Respondent
BEFORE: CONLAN J.
COUNSEL: Neil J. Arnold, for the Applicant
Norman A. Pizzale, for the Respondent
E N D O R S E M E N T
Introduction
[1] A Court Order is not an invitation to dance or an offer to negotiate or a request to debate. For so long as it remains valid, it is a directive that shall be complied with.
[2] At the same time, access to justice is a critically important principle for those litigants who wish to vary or appeal an Order.
[3] At times, these matters collide. This is one of those instances.
[4] The Respondent, Timothy John Kropf (“Mr. Kropf”), has brought a Motion to Change the Final Order of Seppi J. made on March 25, 2004, specifically, to terminate child support and to terminate spousal support, among other relief. The Motion to Change was issued on January 4, 2011.
[5] The Applicant, Irene Theresa Kropf (“Ms. Kropf”), has brought a motion to (i) stay the within proceeding; (ii) order that Mr. Kropf pay security for costs; (iii) order that Mr. Kropf be barred from bringing any further Motions to Change the said Final Order of Justice Seppi without leave of the Court; and (iv) costs. The Notice of Motion is dated October 15, 2012.
A Brief History
[6] After Seppi J.’s Final Order made on March 25, 2004, Mr. Kropf brought a Motion to Change (then a Notice of Motion to vary). That motion was considered by Snowie J. and dealt with by a temporary order made on March 8, 2006. The order granted relief sought by Ms. Kropf and stayed Mr. Kropf’s Motion to Change pending (i) Mr. Kropf’s compliance with the judgment of Seppi J. and (ii) his posting of security for costs in the amount of $10,000.00. Snowie J. ordered that Mr. Kropf pay $3,500.00 in costs for the proceeding before Her Honour.
[7] Compliance with Seppi J.’s judgment required that Mr. Kropf pay nearly $40,000.00 regarding expenses for the two children, an equalization payment and costs.
[8] Mr. Kropf applied for leave to appeal the Order of Snowie J. That leave was denied by O’Connell J. by Order made on August 30, 2006. Justice O’Connell ordered that Mr. Kropf pay costs on the application for leave to appeal in the amount of $1,000.00.
[9] And here we are today. Mr. Kropf has not paid the nearly $40,000.00 ordered by Seppi J. Nor has he paid the $3,500.00 in costs ordered by Snowie J. Nor has he paid the $1,000.00 in costs ordered by Justice O’Connell.
[10] Easy, the reader may conclude. Shut the door on Mr. Kropf. Stay his Motion to Change issued in January 2011 until he complies in full with all of the court orders. It is not quite that simple.
The Issues
[11] There are three issues. First, should Mr. Kropf’s Motion to Change be stayed? Second, should Mr. Kropf be ordered to pay security for costs? Third, should he be prohibited from bringing any further Motions to Change the Final Order of Seppi J. without leave of the Court?
[12] There was an additional request by Ms. Kropf raised in her factum and in oral argument by her counsel – that Mr. Kropf’s Motion to Change be outright dismissed. That request is denied. There is a significant difference between staying a proceeding and dismissing it. Parties ought to be held strictly to their pleadings in most instances. Dismissal of Mr. Kropf’s Motion to Change was not pleaded in Ms. Kropf’s Notice of Motion. The request is denied on that basis.
The Materials on the Motion to Stay
[13] I am grateful to counsel. They argued this matter well on both sides. The materials were plentiful and enlightening. I have carefully considered the evidence: the affidavits of Ms. Kropf sworn on October 15, 2012 and November 13, 2012, including the exhibits thereto, and the affidavit of Mr. Kropf sworn on November 6, 2012, including the exhibits thereto.
[14] I have considered the oral submissions of counsel as well as the facta and Books of Authorities on both sides.
The Law
[15] Section 106 of the Courts of Justice Act (Ontario) allows a Court to stay a proceeding on such terms as are considered just.
[16] Rule 24(13) of the Family Law Rules provides authority for an order for security for costs. One of the bases for such an order is the existence of an unpaid costs order against the subject party – clause 3.
[17] There is a longstanding general principle that a costs order shall be paid before a party can proceed further before the Court: Canadian Express Ltd. v. Blair, 1992 CanLII 7535 (ON SC), [1992] O.J. No. 2029 (Gen. Div.). But there are exceptions to that principle where, for example, denying the debtor access to justice and his or her day in court to determine the matter on its merits would be an unduly harsh result.
[18] An important consideration is whether the debtor has willfully breached a court order. A Court will not sit idly by while a litigant abuses the process of the court and undermines respect for court orders by initiating and prosecuting proceedings while having deliberately contravened a prior court order and failed to purge his or her contempt: Dickie v. Dickie, 2006 CanLII 576 (ON CA, per Laskin J.A. whose dissenting opinion was affirmed by the SCC at 2007 SCC 8, [2007] 1 S.C.R. 346).
[19] In other words, it is crucial whether the delinquent has sufficiently explained his or her failure to comply with the court order or, rather, has the means to comply but simply refuses and is incorrigible: Serra v. Serra, 2007 ONCA 465.
[20] The power to stay a proceeding ought to be used sparingly. It should be reserved for the clearest of cases. The burden of proof is on Ms. Kropf who is requesting the stay. The standard is on a balance of probabilities. Two conditions must be met:
(i) a finding that continuing the proceeding would cause an injustice because it would be oppressive or vexatious to Ms. Kropf or would be an abuse of the process of the court; and
(ii) a determination that a stay would not cause injustice to the other party, here Mr. Kropf: G.P.M. v. S.J.F., 2005 CanLII 19840 (ON SC) and Andrews v. Andrews, 2000 CanLII 22552 (ON SC), [2000] O.J. No. 324 (S.C.J.).
Analysis
The Stay
[21] There is no question that Ms. Kropf has established on balance that allowing Mr. Kropf’s Motion to Change to proceed would be an abuse of the process of the court.
[22] Mr. Kropf is not in a position to pick and choose what portions of what court orders he feels comfortable complying with. The evidence from Mr. Kropf is that he could not afford to pay the amounts ordered, but even accepting a certain degree of impecuniousness on his part, the fact remains that he should have complied at least in part. To pay not a penny of the costs ordered by three Justices is unacceptable. It makes a mockery of our justice system.
[23] Mr. Kropf was ordered to pay costs by Seppi J. He did not comply even in part. He then brought a Motion to Change other parts of Her Honour’s judgment. That motion was stayed with costs ordered against Mr. Kropf. He did not comply even in part. He exercised his right to seek leave to appeal the Order of Snowie J. He was unsuccessful and ordered to pay costs again. He did not comply even in part.
[24] I do not accept the argument made by counsel for Mr. Kropf that the said non-compliance was unintentional or not willful. And I reject the proposition that Mr. Kropf has somehow notionally complied with the Orders of Justices Seppi and Snowie in that he has overpaid support in a quantum greater than the amounts ordered and still outstanding. Perhaps Mr. Kropf could not satisfy the orders in full, but to not pay a dime is hardly the result purely of a lack of finances. Further, it is no answer to come to court and say “I know that I did not do x as ordered but I did y which is just as good or better, so no harm done” (my words, not those of Mr. Kropf or his counsel).
[25] Now Mr. Kropf brings a fresh Motion to Change the same original Order of Justice Seppi. Permitting that motion to proceed, particularly without any security for costs order, amounts to an abuse of the court’s process. Ms. Kropf has satisfied the first requirement of the test for a stay.
[26] She has not satisfied the second requirement, however. I am of the opinion that Mr. Kropf, although not one who attracts much sympathy, is entitled to have this Motion to Change decided on its merits, subject to him posting security for costs which I will deal with below. This is not one of those clearest of cases justifying a stay.
[27] The parties need finality or something close to. And Mr. Kropf’s Motion to Change has some merit. That is not to say that it will ultimately succeed, but on the basis of the evidence before me including the affidavit of Mr. Kropf sworn on November 6, 2012 and the Spousal Support Advisory Guidelines calculations attached as an exhibit thereto, there is at least a prima facie case that Mr. Kropf has overpaid spousal support and, in fact, ought not to have been required to pay anything for spousal support commencing in 2006.
[28] Again, I repeat, I do not have all of the evidence before me. It may turn out that Mr. Kropf will be unsuccessful. It may result that he has not overpaid and is not entitled to the relief sought in his Motion to Change. But, as in G.P.M., supra, it certainly cannot be said that Mr. Kropf’s Motion to Change is meritless or frivolous.
[29] A stay would cause an injustice to Mr. Kropf that, in all of the circumstances, outweighs the sour taste that I have in permitting Mr. Kropf’s Motion to Change to proceed notwithstanding his repeated non-compliance with prior court orders. Although a close call, the second requirement for a stay has not been met by the Applicant, Ms. Kropf.
[30] This is a discretionary matter. On balance, I elect not to close the door on Mr. Kropf which is indeed the very likely result if his Motion to Change is stayed pending his satisfaction in full of all prior court orders. Without a prima facie case or, put differently, in the face of what I thought was a meritless or frivolous or even very weak claim, my discretion on the stay request would likely have been exercised in favour of granting the order sought.
Security for Costs
[31] This is not a close call. The cases provided by counsel for Mr. Kropf deal with situations where security for costs is frowned upon where the person liable to pay is impecunious to a degree that any such order would effectively dispose of the matter, summarily, without a trial on the merits. That is not this case. Mr. Kropf is not that person.
[32] This Court orders that Mr. Kropf shall pay into court security for costs in the amount of $15,139.38. That quantum may seem to be an odd figure, but it is based on the outstanding costs awards to date made by Justices Seppi ($10,639.38), Snowie ($3,500.00) and O’Connell ($1,000.00). It is a reasonable amount.
[33] That amount shall be paid into court by Mr. Kropf by January 31, 2013. Sub rules (15) and (16) of Family Law Rule 24 apply.
[34] Should Mr. Kropf be prohibited from bringing any further Motions to Change without leave of the court?
[35] No. It is not vexatious for Mr. Kropf to have brought two Motions to Change the Order of Seppi J. in the last eight years or so. Mr. Kropf is no stranger to litigation, however, he is not a target of such an extraordinary order.
[36] Should Mr. Kropf not pay the security for costs ordered herein and attempt to initiate another Motion to Change the same Order of Justice Seppi down the road, I suspect that the adjudication of such a request will be different.
Conclusion
[37] To Mr. Arnold and Mr. Pizzale, thank you for your assistance. The matter was well prepared and competently argued on both sides. I wish the parties success moving forward.
[38] If counsel are not able to settle the issue of costs, then they shall contact the Trial Coordinator in Owen Sound to arrange a further court attendance to hear brief submissions at that time. Filings can be made then.
[39] Temporary Order accordingly. The request for a stay of proceedings is denied. The request for security for costs is granted. The request for an order that Mr. Kropf be prohibited from bringing any further Motions to Change absent leave of the Court is denied.
Conlan J.
DATE: November 22, 2012
COURT FILE NO.: 123/00
DATE: 20121122
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IRENE THERESA KROPF
v.
TIMOTHY JOHN KROPF
BEFORE: CONLAN J.
COUNSEL: Neil J. Arnold, for the Applicant
Norman A. Pizzale, for the Respondent
ENDORSEMENT
Conlan J.
DATE: November 22, 2012