ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS 10-71-00001

DATE: 20130411

B E T W E E N:

SYLVIA HAWKINS

On her own behalf

Applicant

• and -

ANTHONY SCHLOSSER

D. Andrew Thomson, Counsel for the Respondent

Respondent

HEARD: March 21, 2013

Ellies J.

REASONS FOR DECISION

OVERVIEW

[1] Mrs. Hawkins’ motion to change (v. 4, tab 2), her contempt motion (v. 5, tab 12) and Mr. Schlosser’s motion to have Ms. Hawkins declared a vexatious litigant (Response, v. 5, tab 14) proceeded before me on March 21, 2013.

[2] Both parties agreed with my suggestion that submissions be directed to all three motions at the same time, as the evidence in support of each overlapped significantly, if not completely. Following their submissions, I reserved my decision on all matters.

[3] For the following reasons, I have concluded that both motions brought by Ms. Hawkins should be dismissed. While I have not granted Mr. Schlosser’s request in full, I have concluded that Ms. Hawkins ought to be prohibited from commencing any further proceedings with respect to custody of or access to their daughter, Selena, without the court’s permission.

[4] In preparing these reasons, I have throughout held the hope that Ms. Hawkins will come to see that it is time to accept the thoughtful and considered opinion of Gordon J. and to end the hostilities between her and Mr. Schlosser for the benefit of their daughter.

BACKGROUND

[5] Ms. Hawkins and Mr. Schlosser lived together from December, 2006 to December, 2007. The child at the center of all these motions, Selena Antonia, was born to both of them on November 29, 2007.

[6] On October 15, 2010 Ms. Hawkins commenced a proceeding in this court in which she sought custody of Selena, amongst other things. For eight days during the months of January and March, 2012 Gordon J. presided over a trial in Parry Sound involving those issues.

[7] On May 7, 2012 Gordon J. released his reasons. That portion dealing with the issues of custody and access consisted of eighteen single-spaced typewritten pages. In clear and cogent language, he reviewed the evidence and explained his conclusion as it related to the factors listed in section 24 of the Children’s Law Reform Act. During the course of his analysis, he expressed concerns about Ms. Hawkins’ ability to control her reactions, especially as they related to Mr. Schlosser. At para. 32, he wrote:

The emotional stability within Ms. Hawkins’ home is also a concern. Clearly there have been behavioural issues with Kayla and Isaiah that have caused not significant disruption in the home. In addition, it became clear to me over the course of the trial that Ms. Hawkins had a difficult time reigning in her emotions. This was evident from her conduct during the trial. It is evident from the various text messages and e-mails which were made exhibits at trial; and is evident from many of her dealings with the agencies that have tried to assist her and her family. Her belief in her perception of events is unshakeable. Her denial of any criticism of her parenting is absolute. Her reactions to events which displease her is exaggerated. I have little doubt that these personality traits contribute to significant tumult within the household from time to time.

[8] Gordon J. also wrote, at para. 47:

I am satisfied that with respect to most issues, both parties will be able to put Selena’s interests ahead of their own. However, I am concerned about Ms. Hawkins’ ability to overcome the quite visceral reaction she has to Mr. Schlosser when they are not on good terms and to ensure that Selena and her father enjoy a healthy relationship. I do not mean to suggest that Ms. Hawkins might deliberately alienate Selena from her father. Rather, my concern is that her anger towards Mr. Schlosser will prevent her from making decisions which are in Selena’s best interests...

[9] Finally, he concluded, at para. 71:

Neither Mr. Schlosser nor Ms. Hawkins is perfect. They are not expected to be. What I am to determine is with whom Selena is more likely to develop into a happy and healthy person. Considering all of the factors set out in section 24 of the Children’s Law Reform Act, along with all other factors to which I was directed by the parties, it is my view that Selena’s best interests are best served by being placed in the care of her father. I have come to this conclusion based on the relative stability of his home, his willingness to work with service providers, and his ability and commitment to put the interests of his daughter ahead of his own, including his commitment to ensure that Selena maintains a positive relationship with her mother, much as he has ensured with his other daughters.

[10] Gordon J. did not order that the custody of Selena change immediately. Instead, he ordered that it take place gradually, beginning during the summer with Selena living alternating two week periods with each parent, and ending as the school year began in September, when her primary residence would be with Mr. Schlosser

MS. HAWKINS’ POSITION

[11] Ms. Hawkins argues that Gordon J.’s confidence in Mr. Schlosser was misplaced and that, instead, Mr. Schlosser is doing all he can to alienate Selena from Ms. Hawkins. She points to her evidence that Mr. Schlosser has refused telephone contact with Selena, denied physical access to which Ms. Hawkins was entitled and failed to properly deal with Selena’s medical issues, amongst other things. Thus, she argues that Mr. Schlosser is not acting in Selena’s best interests, as Gordon J. thought he would.

[12] In contrast, Ms. Hawkins submits that she has been acting in Selena’s best interests throughout, for example by following through with necessary medical appointments. She argues that the tenacity with which she has pursued this motion to change is proof of the lengths to which she will go to look out for Selena’s best interest.

[13] In my view, just the opposite is true. Ms. Hawkins’ actions since the final order demonstrate with perfect hindsight that Gordon J. was accurate in his perception of her inability to put her daughter’s best interest ahead of her own emotions.

ANALYSIS

Motion to Change

[14] Section 29 of the Children’s Law Reform Act provides that an order for custody or access shall not be varied unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child.

[15] A material change in circumstances means a change that, if known at the time the original order was made, would likely have resulted in different terms (: Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670, at para. 21, per Sopinka J.). The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order (: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 10).

[16] The onus of establishing a material change is on the party seeking the variation (: Gordon, at para. 12). The motion to vary cannot serve as an indirect route of appeal from the original custody order (: Gordon, at para. 11). In my view, that is precisely what is occurring here.

[17] The ink was barely dry on Gordon J.’s reasons when Ms. Hawkins commenced her attack on them. First, she filed a notice of appeal with the Court of Appeal. She also filed a motion to change and an emergency motion to vary the final order. Rather than file these in Parry Sound, the jurisdiction in which Selena had been resident until a recent move by Ms. Hawkins, she filed them in North Bay. Rather than provide Mr. Schlosser with proper notice, she sought ex parte relief. Mr. Schlosser, however, learned of the proceedings and requested that his lawyer attend, which he did on June 29, 2012. The presiding Justice, upon learning of the history of this matter, concluded that the motion had been brought in the wrong jurisdiction. Ms. Hawkins was also advised that, regardless of where the proceeding was brought, the motion to change could not proceed because of the outstanding appeal. Following this, Ms. Hawkins abandoned the appeal and commenced the present proceeding by way of a notice dated September 11, 2012 and returnable on September 14, 2012.

[18] In support of her motion to change, Ms. Hawkins swore an affidavit on August 30, 2012. As she admits in paragraphs 1 through 3 of that affidavit, she brought the North Bay motion based on the effect of the trial order on Selena’s “mental health and (that of her) other (five) children”. She alleged that Selena and her siblings were being “alienated from each other” and that they were “suffering” by virtue of the final order. At para. 17 of that affidavit, she deposed:

I have abandoned my appeal solely on the basis, (sic) that I can not afford $20 – 30,000 that would take from my family. I have (believed) this was wrong from the start. I have to question why a capable mother of 6 children would only have one child removed from the (equation). Why was I stripped of my rights as a parent to make decisions for my child? Why are my children made to suffer the stages of grief, (sadness) and anxiety whereas, (sic) Selena Schlosser at 4 years old has been recommended to attend an anxiety group by Valarie Bertier at Hands in Northbay (sic), and Dr. Graham recommending the court pay for a psychological assessment for the family? My family is suffering.

[19] This excerpt demonstrates quite clearly, in my view, that this motion to change is really just an appeal in disguise.

[20] In addition to the motion to change returnable for the first time on September 14, Ms. Hawkins filed a motion for temporary custody, returnable on that same date. Both were adjourned by O’Neill J. to October 1. The motion could not proceed on that date because the presiding judge had a conflict. Therefore, matters were further adjourned to October 29. However, Ms. Hawkins was not content with that and, therefore, brought another emergency motion for temporary custody returnable on October 3, a day after it was filed. In addition, she brought a contempt motion against Mr. Schlosser. These motions were adjourned by O’Neill J. to October 29, in order to permit Mr. Schlosser to respond.

[21] In support of her various motions, Ms. Hawkins filed six affidavits. With each successive affidavit, new complaints about Mr. Schlosser’s behaviour were added. In addition to the three main complaints I have referred to earlier, there were more minor complaints, such as an allegation that Mr. Schlosser had been telling Selena to call her mother by her first name and that he had put a lock on Selena’s door. These allegations were denied by Mr. Schlosser.

[22] On October 29, the motions were addressed before me. I dismissed both motions for temporary custody, on the basis that Ms. Hawkins had failed to demonstrate a material change in circumstances sufficient to justify varying the final order on a temporary basis. I adjourned the contempt motion. No further evidence has been filed in support of Ms. Hawkins’ request for a final variation.

[23] In my view, the evidence continues to be insufficient to justify any variation. As I shall attempt to demonstrate, all three of Ms. Hawkins’ main complaints are based upon Mr. Schlosser’s reaction to Ms. Hawkins’ improper behaviour following the release of Gordon J.’s decision.

Selena’s Emotional Well-being

[24] Before I deal with the allegations of access denial and failure to obtain medical treatment, I wish to deal with Ms. Hawkins’ allegation that Selena has suffered emotionally and that her mental health has been adversely affected by the final order. In my view, the evidence relied upon by Ms. Hawkins also fails to establish this allegation.

[25] In support of her allegation, Ms. Hawkins attached a number of documents to her affidavit of August 30, including photographs showing Selena and Ms. Hawkins’ other children playing happily with one another and a report from “Hands” dated June 21, 2012. Most of the information in the Hands report came from Ms. Hawkins. The only information that is independent of Ms. Hawkins’ information is found in the last paragraph on page 1, where the report states, under the heading “Recommendations and Next Steps”:

Discussed with Selena and Aurora (one of Ms. Hawkins’ children) ways to cope with their feelings. Selena states when she feels sad she likes to play with her siblings or friend, draw or talk to her parents or school counsellor.

[26] I note that this does not confirm Ms. Hawkins’ evidence that Selena was sad. It states only what she does when she feels that way, without stating why she feels sad. Moreover, like the letter from Dr. Graham dated June 16, 2012 (also appended to Ms. Hawkins’ affidavit), this report was prepared long before primary care of Selena was actually changed.

[27] Additionally, Ms. Hawkins’ evidence about Selena’s reaction to the final order is actually contradicted by one of the documents she attached to her August 30 affidavit. In a report from Selena’s school dated June 18, 2012, the principal wrote that Selena’s teacher “reports that Selena is very happy while at school and making gains socially and academically. She has not mentioned any concerns about the upcoming change”.

[28] Even if I accepted Ms. Hawkins’ allegation that Selena was saddened by the order, it would not be sufficient to justify a variation. The change in circumstances must be unforeseen. It was not unforeseeable that Selena might be affected by the change in the custodial arrangement. Gordon J. was alive to the potential for this. That is one of the reasons why, in my view, he implemented the change in a gradual way.

Denial of Physical Access

[29] In connection with access, Gordon J. ordered that Mr. Schlosser would be responsible for bringing Selena to her mother’s and that Ms. Hawkins would be responsible for returning her. Ms. Hawkins complains that, commencing with the weekend of September 21, 2012 Mr. Schlosser refused to drive Selena to her home in accordance with the terms of the final order. These allegations also form the basis of Ms. Hawkins’ motion for contempt.

[30] Mr. Schlosser admits this, but argues that it was a reaction to Ms. Hawkins’ refusal to return Selena. I agree.

[31] At the time that the final order was made, Ms. Hawkins had a van for the purchase of which Mr. Schlosser had co-signed as a borrower (presumably while they were still together). In his affidavit of September 14, 2012 Mr. Schlosser deposed that Ms. Hawkins had only returned Selena once in accordance with the final order, that she claimed that she had no money to pay for gas and that she had said that, if Mr. Schlosser refused to pick Selena up, Selena would be staying in her care. Mr. Schlosser deposed that Ms. Hawkins still had the van referred to above. He also deposed that she had taken trips to the Caribbean on two occasions in the past ten months and a trip to New York two weeks before swearing his affidavit. As a result, he asked that the final order be varied to provide that Ms. Hawkins would pick up Selena and that he would retrieve her.

[32] None of Mr. Schlosser’s September 14 allegations were denied by Ms. Hawkins in her subsequent affidavits, including an affidavit sworn on September 21, 2012. In fact, in that affidavit, she admitted that she took a trip at the end of August to St. Catharines for the purpose of shopping in the United States.

[33] In his affidavit of October 1, 2012 Mr. Schlosser deposed that, out of the five exchanges of Selena for access purposes between June 30 and September 9, Ms. Hawkins had only delivered Selena to him once at the end of the weekend. Once again, this was not denied by Ms. Hawkins in an affidavit she filed afterwards, sworn on October 24.

[34] When she appeared before me on January 9, 2013, at which time I dealt with Mr. Schlosser’s motion to vary the final order to require Ms. Hawkins to pick Selena up for access purposes, Ms. Hawkins submitted that, although she did still have the van, it was not functioning properly. However, she never said a word about this in any of her affidavits. As a solution to Mr. Schlosser’s request for a variation of the final order, Ms. Hawkins suggested that she could now bring Selena back on Sundays because she had two other drivers to assist her, namely her father and her partner. But these two individuals were in Ms. Hawkins’s life much earlier. In her affidavit of August 30, Ms. Hawkins referred to Master Corporal Ian Carriere as her “long-term significant other” (see para. 18). And yet, Ms. Hawkins never once appears to have sought his assistance or that of her father prior to January 9.

[35] With respect to this complaint, like the others with which I will deal, I find that Ms. Hawkins is trying to take advantage of Mr. Schlosser’s reaction to a situation that she created, for the purpose of overturning the final order. The circumstances she relies upon to support her motion were the natural consequences of her own actions. They do not constitute a material change in circumstances.

Denial of Telephone Access

[36] Ms. Hawkins alleges that Ms. Schlosser has denied her telephone access following the final order. Like the allegation regarding physical access, this, too, is true. However, also like the denial of physical access allegation, this allegation is true because of Ms. Hawkins’ own behaviour. She refused to accept Mr. Schlosser’s interpretation of this term of the final order or to accept anything less than daily telephone access with Selena, regardless of whether it is in her daughter’s best interests.

[37] The final order included a term that each parent was to “encourage Selena to call the other parent while in their care” and to ensure that a telephone was available to her for that purpose. The order did not say, as previous orders by Gordon J. in this case had said, that either party was entitled to call Selena every day. However, Ms. Hawkins insisted that she was entitled to call Selena every night while Selena was in Ms. Schlosser’s care. At first, Mr. Schlosser agreed, but insisted that Ms. Hawkins do likewise while Selena was in her care, as Ms. Hawkins had not allowed him to speak to Selena at all since April.

[38] On June 30, as the summer access schedule of two week rotations began, and Selena was in the care of Mr. Schlosser for longer periods, Mr. Schlosser wrote electronically to Ms. Hawkins, advising her that he thought it was a good idea to have Ms. Hawkins call twice weekly, on Mondays and Thursdays, just as Gordon J. had ordered on a temporary basis on June 1, 2011 when Selena was in the care of Ms. Hawkins. However, Ms. Hawkins refused to agree to this and continued to call every night. On the advice of his lawyer, Mr. Schlosser eventually contacted the police, who spoke to Ms. Hawkins about harassing Mr. Schlosser. In what has become a pattern, Ms. Hawkins also relies upon Mr. Schlosser’s reaction in calling the police as another ground justifying variation.

[39] Rather than speak to Selena twice a week, as suggested by Mr. Schlosser, Ms. Hawkins simply refused to call. Yet, Mr. Schlosser continued to try to foster telephone access. He wanted Selena to call on September 3 (a Monday), but she fell asleep too early. He tried again on September 6 (a Thursday), but Ms. Hawkins did not answer either her house phone or her cell phone (although the latter was clearly working, as evidenced by the text she sent later). Selena fell asleep too early again on September 10 (a Monday), but tried again on September 13 (a Thursday). Again, Ms. Hawkins failed to answer, although, once again, she sent a text afterwards, alleging that the call was just a ploy.

[40] Selena tried to call her mother again on September 16 and September 20, but the recording said the phone had been disconnected. Ms. Hawkins had not advised Mr. Schlosser that this had occurred.

[41] It seems that Ms. Hawkins was happier to able to allege that she had not spoken to her daughter in months in support of her motion rather than to speak to Selena when the opportunity was available. Instead of answering the telephone on Mondays and Thursday nights, Ms. Hawkins insisted on attempting to call Selena on other nights of the week, contrary to Mr. Schlosser’s wishes, later alleging that Mr. Schlosser had denied her access on those evenings when he refused to answer his phone.

[42] I find no merit in this ground for variation.

Failure to Obtain Medical Treatment

[43] Ms. Hawkins alleges that Mr. Schlosser has not obtained important mental and physical health treatment for Selena. She alleges that Mr. Schlosser discontinued counselling that Selena was receiving once he obtained custody of Selena and that he failed to react appropriately to a seizure Selena suffered on September 6, 2012 by failing to initiate and to follow up on tests to properly diagnose her condition.

[44] In my opinion, Ms. Hawkins has failed to establish the allegations surrounding Selena’s seizure and, just as she did with her complaints about physical access and telephone access, she is attempting to rely on Mr. Schlosser’s reaction to a situation that she created surrounding Selena’s treatment.

[45] On September 8, 2012 Ms. Hawkins took Selena to see Dr. Graham about Selena’s seizures. Dr. Graham scheduled a sleep-deprived EEG for September 26. Ms. Hawkins deposes in her September 11 affidavit that she was also waiting to hear from CHEO regarding more testing. She accuses Mr. Schlosser of failing to initiate anything regarding Selena’s possible seizure disorder.

[46] The problem is that, when Ms. Hawkins took Selena to see Dr. Graham, Mr. Schlosser was actually the custodial parent. Ms. Hawkins had no right to take Selena for treatment without consulting Mr. Schlosser.

[47] Ms. Hawkins’ early affidavit evidence made it sound are though Mr. Schlosser was ignoring Selena’s health when that was not the case. Ms. Hawkins failed to mention anything in her affidavits prior to September 14 about Dr. Clayton, whom Mr. Schlosser swore on that date was the physician treating Selena with respect to her potential seizure disorder and that Selena had seen Dr. Clayton on September 13, 2012.

[48] Ms. Hawkins deposed on September 21 that Selena was no longer a patient of Dr. Clayton’s when she booked the treatment that she did with Dr. Graham. But she misses the point, a point she fully understood and complained bitterly about after the final order, namely that it is the custodial parent’s right to make the ultimate decision with respect to a child’s medical treatment.

[49] On October 3, 2012 Ms. Hawkins deposed that Mr. Schlosser had failed to attend the EEG scheduled by her for September 26 and relied on this as a basis for her emergency motion for custody. In an affidavit she swore on October 24, 2012 Ms. Hawkins also sought to rely on an allegation that Selena had both gel and lice in her hair when she visited Ms. Hawkins on the weekend of October 5.

[50] As Mr. Schlosser explained in his affidavit of October 29, he had not “missed” the September 26 appointment but, instead, rescheduled it to October 3. Obviously, this is true, if Ms. Hawkins observed gel in Selena’s hair the following weekend. Mr. Schlosser denied the presence of gel in Selena’s hair and deposed that her hair had been washed following the EEG procedure. I do not need to resolve this conflict in the evidence concerning the presence or the absence of gel in Selena’s hair as, alone or in combination with the other allegations, it is no basis upon which to vary a final order. Nor is the presence of lice in Selena’s hair. This is a condition with which a great many very good parents have had to deal.

[51] According to Ms. Hawkins, the results of the EEG undertaken on October 3 (and not on October 17, as alleged by Ms. Hawkins in her affidavit of October 24) show that Selena does suffer from a seizure disorder and did have a seizure while in Mr. Schlosser’s care on September 6 that he has not acknowledged. In making that allegation, she relies on a report concerning the results of the EEG. However, this report is obviously a report designed to be read and interpreted by Selena’s physician. I have no way of knowing whether the report means that Selena had a seizure or not. Even if it means that she did, there is nothing in that fact, nor in Mr. Schlosser’s attitude about it, that would justify a variation in the final order. There is no indication that Mr. Schlosser had anything to do with the onset of a seizure. There is no evidence that Selena ever suffered a seizure before September 6. Given the fact that the possibility of her having a seizure disorder is still being explored, it is understandable that Mr. Schlosser might not agree with Ms. Hawkins about it at first.

[52] In any event, on October 29, 2012 Mr. Schlosser deposed that an appointment had been made with Dr. Clayton to follow up on the EEG results. Thus, contrary to the allegation of Ms. Hawkins, Mr. Schlosser is attending to Selena’s medical needs.

[53] There is no merit in this alleged ground for variation.

Conclusion

[54] In my view, the only material circumstances that have arisen since the making of the final order are the unyielding and unfounded attacks Ms. Hawkins has made upon it, and the potential adverse effect that her refusal to accept the final order may have on Selena. As Ms. Hawkins herself admitted during her submissions, she has been telling Selena that she wants custody of her and that Ms. Schlosser won’t let her call. Apart from the fact that the latter statement is not true, these sorts of statements are harmful to Selena. They interfere with the smooth transition that Gordon J. had so careful worked out. They also prove how right he was to be concerned that Ms. Hawkins is unable to put aside her own feelings in the best interests of Selena.

[55] Ms. Hawkins’ motion to change is dismissed.

Contempt Motion

[56] On or about September 21, 2012 Mr. Schlosser sent an e-mail to Ms. Hawkins, advising her that he would no longer be bringing Selena to her for access purposes in accordance to the terms of the final order. It would appear that this breach of the order was short-lived, as Ms. Hawkins deposed in her affidavit of October 24 that she had access to Selena on Friday, October 5 despite the mechanical difficulties Ms. Hawkins later indicated she was experiencing with her vehicle. Therefore, I conclude that Mr. Schlosser brought Selena to Ms. Hawkins in accordance with the order on that first weekend in October.

[57] Ms. Hawkins asks the court to find Mr. Schlosser in contempt for this breach. However, as I have previously indicated, Ms. Hawkins had breached the order four times before Mr. Schlosser finally adopted the position he did.

[58] I have also already indicated my belief that Ms. Hawkins could have done more to comply with the terms of the final order by asking for assistance in the summer of 2012 from the people from whom, on January 9, she indicated she could seek assistance.

[59] As Aitken J. held in Rivers v. Georgantopoulos, [2005] O.J. No. 1816, a party cannot come to court seeking a finding of contempt against the other party, when she has also failed to live up to the court order. For that reason, Ms. Hawkins’ contempt motion is dismissed.

Vexatious Litigant Motion

[60] Ms. Hawkins has brought a total of six proceedings in an effort to overturn the final order, namely: the notice of appeal, the North Bay motion to change, the North Bay temporary motion to change, this motion to change, the temporary motion to change of September 14, and the temporary motion to change of October 2. In addition, she brought the contempt motion. None of these have been successful.

[61] To date, Mr. Schlosser has been awarded $2,500 in costs, only $750 of which were paid, and were paid only when Ms. Hawkins would otherwise have been unable to proceed by virtue of the order I made on January 9 under Rule 14(23). Ms. Schlosser has spent a great deal more than this in legal fees.

[62] On his behalf, counsel requests either an order under section 140 of the Courts of Justice Act preventing Ms. Hawkins from bringing any further proceedings in any court, except with leave of a judge of this court or, alternatively, an order that she be prevented from bringing any further proceedings unless represented by counsel.

[63] Section 140(1) provides:

Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) instituted vexatious proceedings in any court; or

(b) conducted a proceeding in any court in a vexatious manner,

the judge may order that,

(c) no further proceeding be instituted by the person in any court; or

(d) a proceeding previously instituted by the person in any court not be continued,

except by leave of a judge of the Superior Court of Justice.

[64] The term “vexatious” is not defined in the section. In Re. Lang Michner et al. v. Fabian et al. (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (Ont. H.C.), Henry J. extracted the following principles from the jurisprudence existing at that time about the meaning of the term (at para. 19):

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

[65] In my view, at least three of these principles apply in this case, namely:

(a) more than one proceeding has been brought to determine an issue (custody) which has already been determined by a court of competent jurisdiction;

(b) grounds and issues have been rolled forward and repeated and supplemented in Ms. Hawkins’ numerous affidavits; and

(c) Ms. Hawkins has failed to pay the costs of unsuccessful proceeding.

Therefore, I find that the grounds required by section 140 have been made out.

[66] However, the section is permissive, not mandatory. Once a finding has been made that the requisite grounds exist, a court may, not must, make an order under that section. I am unwilling to make an order requiring Ms. Hawkins to engage counsel in light of the submissions I have heard on several occasions regarding her financial circumstances and her recent submission that she was unable to find a lawyer who would accept a Legal Aid certificate that she was eventually granted in connection with this matter. Moreover, I have not been advised of any authority pursuant to which I could make such an order, even if I was inclined to do so.

[67] I am also unwilling to make an order of the scope contemplated by section 140 which would preclude Ms. Hawkins from commencing any proceeding whatsoever. I am aware that Ms. Hawkins is involved in ongoing litigation with the father of her other children and I am concerned about the effect of such an order on that litigation.

[68] Yet, something must be done to stem the flow of proceedings being commenced by Ms. Hawkins concerning Selena. In Minga Mabi v. Skokos, [2011] O.J. 3154, Aitken J. relied on section 140 to make an order that was more narrow than the one referred to in subsection 1(d) of that section. He ordered that the respondent be precluded from making any further motions or taking any further steps relating to the issues in the matter before him, without leave of the court. I am inclined to do likewise.

[69] Therefore, an order will issue, declaring Ms. Hawkins a vexatious litigant and prohibiting her from commencing any proceeding in any court relating to custody of or access to Selena ( who shall be named in full and whose birth date shall be included in the order), without leave of a judge of this court.

COSTS

[70] At the conclusion of argument before me on March 21, I requested that Ms. Hawkins and counsel for Mr. Schlosser address the issue of costs. Mr. Thomson submitted that, if Mr. Schlosser was completely successful with respect to all three motions before the court, the sum of $2,500 would be a fair and reasonable amount to require Ms. Hawkins to pay. I agree. Therefore, an order will issue requiring Ms. Hawkins to pay that sum within twelve months of the release of these reasons.

Ellies J.

Released: 20130411

COURT FILE NO.: FS 10-71-00001
DATE: 20130411

ONTARIO
SUPERIOR COURT OF JUSTICE

SYLVIA HAWKINS
Applicant

– and –

ANTHONY SCHLOSSER
Respondent

REASONS FOR decision

Ellies J.

Released: 20130411