ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 11-701
Date: 2014/01/08

BETWEEN:

Lori Ann Harley
Applicant

– and –

Sean J. Harley
Respondent

Self-represented

Self-represented

Heard: December 12th, 2013

Ruling on Motion

LALIBERTE, J.

INTRODUCTION

[1] On August 12th, 2013, the Court made an order pursuant to Family Law Rule 15(27) prohibiting the Respondent, Sean J. Harley, from making any further motion in the case without the Court’s permission.

[2] Specifically, the Court is concerned with the following:

− The issues of custody and child support raised by the Respondent in his Motion to Change issued on July 2nd, 2013, were the subject of a final order dated November 20th, 2012;

− The Respondent had previously brought such a Motion on January 2nd, 2013, which was within a month or so of the said final order; the same issues of child support and custody were being raised;

− This first Motion to Change was the subject of a final order made on consent as evidenced by Minutes of Settlement signed by both parties on April 19th, 2013;

− On July 2nd, 2013, some 2 months following the said consent order of April 19th, 2013, the Respondent filed a second Motion to Change raising the same issues of custody and support;

− This second Motion to Change is practically identical to the first Motion; in fact, it contains the same wording and the same typographical errors;

− The second Motion seeks the same relief on the issues of custody and support;

− Of concern, the Respondent did not attend the first court date set for August 20th, 2013; the Applicant, Lori Ann Harley, was present.

[3] In light of the above-noted Court order requiring leave of the Court, the Respondent is seeking the Court’s permission to further litigate the issues of custody and child support by way of a Motion to Change.

[4] In essence, the issue for this Court is whether the Respondent should be precluded from bringing this Motion to Change on the basis that it amounts to an abuse of the Court process.

THE LAW

[5] The Court is required to monitor the use made of the Court process by litigants. It is duty bound to ensure that cases are dealt with justly. Rule 2 of the Family Law Rules provides the following:

2(1) The primary objective of these rules is to enable the Court to deal with cases justly

2(3) Dealing with a case justly includes

(a) ensuring that the procedure is fair to all parties

2(5) The Court shall promote the primary objective by active management of cases, which includes:

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial.

[6] There are a number of means by which the Court can scrutinize the use of judicial resources to ensure use in a manner which is “just”. For example:

− Rule 15(27) which incorporates Rule 14(21) for Motions to Change.

“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.”

− Section 140 of the Courts of Justice Act

“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.

[7] The basis for the Court’s supervisory role was articulated as follows by the Ontario Court of Appeal in Ballentine v. Ballentine 2003 27775 (ON CA), [2003] O.J. No. 2589 at paragraph 39:

“As noted by Polowin, J. in Beattie v. Ladouceur… There is a significant body of case law with respect to the issue of vexatious litigation. It is perhaps not surprising that many of the cases involve family litigation where emotions often run very deep.” Without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied.”

[8] Justice Henry in the case of Lang Michener v. Fabian 1987 172 (ON SC), [1987] O.J. No. 355, summarized the relevant principles as follows:

“(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;

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

[9] In deciding whether the Respondent should be permitted to pursue this round of litigation, the Court must examine the claims and assess merit. If there is any merit then leave to litigate should be granted.

[10] Since the Respondent is seeking a variation of prior final Court orders which have dealt with issues of child custody and support, merit must be measured in the context of the legal principles to be applied when a party seeks to vary such existing orders.

[11] Justice Whalen succinctly summarized the relevant principles as follows in Rapoport v. Rapoport [2011] O.J. No. 5607, at paragraph 42:

“Courts have long held that there must be a “material change” in circumstances before a variation can be granted. A “material change” means a change, such that, if the matter which is relied on as constituting the change had been known at the time, it would likely have resulted in different terms in the Order. If the matter relied on was known at the relevant time, it cannot be the basis for variation… The change must also be more than momentary, and it must have altered the child’s needs or the ability of the parents to meet these needs in a fundamental way. It must impact the child’s best interests…

The test is the same whether the change sought is in respect of custody and access, or support. The onus of proof lies on the applicant on a balance of probabilities, so that if a material change in circumstances cannot be established, the enquiry ends.”

[12] The requirement of a material change in circumstances is provided for under the following legislation:

− Section 37 Family Law Act;

− Section 14 Child Support Guidelines;

− Section 29 Children’s Law Reform Act;

− Section 17 Divorce Act.

[13] There is also a 6 months limitation on applications to vary support orders from the date of an order which is set out in section 37(3) of the Family Law Act. Leave of the Court is required before an issue of support can be re-litigated within 6 months of a Court order.

DISCUSSION

[14] There are a number of factors in this case which suggest that there is a need for the Court to scrutinize the use made of the Court process by the Respondent. It is somewhat difficult to appreciate why the Respondent would bring a Motion to Change the final order of November 30th, 2012, on January 2nd, 2013, then agree to a final order on April 19th, 2013 which in essence maintained the same terms as the original order and then, within 2 months of this second final order, again seeks to change these terms based on literally the same documents.

[15] More importantly, the Minutes of Settlement signed by the Respondent on April 19th, 2013 and which formed the basis for the second final order are such that the terms of the first order are reinforced by the Respondent. The Respondent specifically agreed to the following:

“1. The Respondent father shall strongly encourage Micaela Helen Harley to reside with the Applicant mother on the alternating weekly basis as set out in the order of the Honourable Madam Justice Lafrance-Cardinal dated November 30th, 2012;

2. The Respondent father agrees that the children’s address for all purposes including school, healthcare, and passport shall be the Applicant’s address.”

[16] As already stated, a principled approach to this issue requires the Court to determine whether there is merit to this proposed litigation. There will be merit if there is a material change in circumstances which:

− was unknown when the orders were made;

− would likely have resulted in different terms in the orders.

[17] The Court finds that there is some merit to the issue of child support. This conclusion is based on the following:

− paragraph 6 of the final order of November 30th, 2012, provided for such a review if there was a subsequent change of residence of one or more of the children;

− there is evidence to suggest that the child, Micaela, is residing with the Respondent;

− there is evidence to suggest that the Respondent has been unemployed as of July, 2013.

[18] Such circumstances amount to material changes in circumstances which would likely have resulted in different terms in the order of November 30th, 2012. These changes warrant a review of the issue of child support. Therefore, leave is granted to proceed on the issue of child support. This includes retroactive and present child support obligations by the parties.

[19] The Court finds that there is no basis and/or merit which would warrant a review of the issue of custody of the children including the child, Micaela.

[20] In essence, there are no changes in circumstances which would likely have impacted on the orders of November 30th, 2012 and April 19th, 2013. In fact, the use by the Respondent of the same materials in both Motions on the issue of custody suggests that there are no changes of circumstances.

[21] Finally, the Respondent’s agreement, as noted above, to “strongly encourage Micaela to reside with the Applicant mother on the alternating weekly basis” confirms that the Court and the parties were aware of the fact that she was residing mostly with the Respondent. As set out earlier, “…if the matter relied on was known at the relevant time, it cannot be the basis for variation…” Therefore, leave to proceed is denied on the issue of child custody.

ISSUE OF NET FAMILY PROPERTY

[22] In his Motion to Change issued on July 2nd, 2013, the Respondent is asking the Court to review the question of equalization of net family properties. This issue is subject to the final order and there is no authority for this Court to review same.

CONCLUSION

[23] For the reasons set out in these reasons, the Court makes the following order:

1. the Respondent is granted leave to proceed with the Motion to Change issued by the Court on July 2nd, 2013 on the issue of child support which include retroactive and prospective support;

2. the Respondent is not authorized to proceed with the issue of child custody on the basis of the materials filed;

3. the Respondent must seek the Court’s permission before making any other motions in this case;

4. the parties are directed to communicate with the trial coordinator at 613-930-4539 to set a date for a case conference.

Justice Ronald M. Laliberte Jr.

Released: January 8, 2014

COURT FILE NO.: 11-701
DATE: 2014/01/08

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Lori Ann Harley
Applicant

– and –

Sean J. Harley
Respondent

RULING ON MOTION

Justice Ronald M. Laliberte Jr.

Released: January 8, 2014