Pelletier v. Dale, 2015 ONSC 302

Pelletier v. Dale, 2015 ONSC 302

COURT FILE NO.: 2972/14

DATE: 2015/02/03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARCEL PELLETIER

Acting in person

Applicant

• and -

MICHELLE DALE

Robert MacRae and Heather-Ann Mendes, for the Respondent

Respondent

HEARD: January 14, 2015

ellies j.

REASONS FOR DECISION

1Mr. Pelletier’s motion to change Noble J.’s order of December 18, 2003 (found at tab 2 of the Continuing Record) and his motion to change the venue of the proceeding (found at tab 9 of the Continuing Record) were heard on January 14.

2At his request, Mr. Pelletier was permitted to attend the motion via teleconference from Saskatchewan. Mr. MacRae and Ms. Mendes appeared for the respondent. Following argument, I dismissed the motion to change the venue for reasons to be released. I reserved my decision on the motion to change the order.

3These are my reasons on both motions. I have concluded that both should be dismissed. Mr. Pelletier’s motion to change the venue of these proceedings does not allege any apprehension of bias on my part and relates only to the judges who sit regularly in Sault Ste. Marie. In my view, the issue in Mr. Pelletier’s motion to change the order has already been decided against him. It is res judicata, to use the legal term.

MOTION TO CHANGE THE VENUE

4In its written form, the motion to change the venue is based on Mr. Pelletier’s belief that there are no Superior Court judges in Sault Ste. Marie who have not been involved in this matter to such an extent as to disqualify them from further involvement. His supporting affidavit, sworn on December 2, 2014 refers to the involvement of the three justices who were sitting full-time in Sault Ste. Marie as of that date, of which group I do not form a part.

5In his oral submissions, Mr. Pelletier argued that the motion to change should be moved to another jurisdiction because of the favourable treatment that other judges who have been involved in this matter have given local counsel retained to oppose the present motion.

6As I will expand upon below, I was one of the judges previously involved in this matter. In particular, on November 18, 2010 I dismissed an earlier motion brought by Mr. Pelletier to change the 2003 order. However, Mr. Pelletier has not alleged that I was anything other than impartial then, or now. That is not surprising, given that November 18, 2010 was the very first time that I presided in motions court in Sault Ste. Marie following my appointment as a judge of this court on September 30, 2010 and that I was transferred to another judicial centre in December of 2012.

7For these reasons, the motion to change the venue is dismissed.

MOTION TO CHANGE THE ORDER

8Mr. Pelletier indicated early in the hearing that he was not prepared to deal with the motion to change as a result of certain concerns relating to the factum filed on behalf of Ms. Dale. Mr. Pelletier expressed concern that the copy with which he had been provided by Mr. MacRae before preparing his own factum might not be the same as the factum eventually filed by Mr. MacRae with the court. However, Mr. Pelletier introduced no evidence in support of his concern. He could have had an agent attend at the courthouse to obtain a copy of the factum filed by Mr. MacRae. He did not. Mere suspicion is not sufficient to permit the court to conclude that counsel for the respondent would engage in such behaviour in violation of his obligation to this court and his obligations under the Rules of Professional Conduct of the Law Society of Upper Canada.

9Although Mr. MacRae took umbrage at the suggestion by Mr. Pelletier that he would do anything of sort alleged, once he learned that I had not yet reviewed either factum, Mr. MacRae advised the court that he was content that the court not read his client’s factum and that the motion to change proceed on the basis only of the remaining materials filed by both parties, including the factum filed by Mr. Pelletier.

10Mr. Pelletier also submitted that the motion to change ought not to proceed as a result of the fact that he had filed an appeal of McMillan J.’s order of September 18, 2014 in which McMillan J. dismissed Mr. Pelletier’s motion to have Ms. Mendes removed as counsel. However, Mr. MacRae advises the court that Mr. Pelletier has not sought leave to appeal McMillan J.’s September order to the Divisional Court, which leave is required pursuant to Rule 62 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This was not contested by Mr. Pelletier. I agree with Mr. MacRae’s submission, therefore, that it is not necessary to await the outcome of the appeal, given that the appeal has not been properly commenced.

11Even if Mr. Pelletier’s appeal had been properly commenced, the appeal does not automatically stay the order of McMillan J., as that order was not one for the payment of money: see subrules 63.01(1) and 63.02(1) of the Rules of Civil Procedure.

12Following Mr. MacRae’s concessions with respect to his client’s factum, I advised Mr. Pelletier that I would recess to read his factum and to allow him to prepare to address the motion to change the order, which he did once court resumed. I turn now to the merits of that motion.

13The present motion is actually the third such motion brought by Mr. Pelletier to change the 2003 order. As set out in the affidavit of Ms. Dale, sworn on February 25, 2014 (found at tab 4 of the Continuing Record), Mr. Pelletier commenced a motion to change in 2005. On January 30, 2006 a paternity test was ordered in connection with that motion. However, Mr. Pelletier failed to follow through with the paternity test and eventually his motion to change was administratively dismissed.

14In September, 2010 Mr. Pelletier commenced his second motion to change the 2003 order. I have reviewed a copy of the court file with respect to that motion to change (Court File No. 22159/03-01). The Continuing Record indicates that, on September 16, 2010 Caputo J. adjourned the motion to November 18, 2010 and ordered that the parties were to attend in person, with or without counsel.

15In his oral submissions with respect to the present motion, Mr. Pelletier advised the court that he learned for the first time that he would not be permitted to attend the hearing of the second motion on November 18, 2010 via telephone at approximately 2:30 p.m. on the afternoon of November 17, when so advised by the Sault Ste. Marie trial coordinator. However, the court file with respect to Mr. Pelletier’s 2010 motion to change contains a letter dated September 17, 2010 signed by Mr. Pelletier, in which he wrote to the trial coordinator as follows:

This matter was before a justice of [the] Ontario Superior Court yesterday whom I do not know the name of and have never been informed of. Yesterday during the proceedings, the justice asked me if I would be represented by legal counsel at a future date as he was adjourning the matter. I promptly said no and the justice subsequently informed me that I would have to be personally present at the next hearing date of November 18, 2010.

16While Mr. Pelletier also indicated in the letter that he was going to be bringing a motion to revisit the matter of his personal attendance in front of a “more objective justice”, there is no evidence that any appeal or other proceeding was ever taken in connection with Caputo J.’s order. Therefore, Mr. Pelletier ought to have been in attendance personally on November 18, 2010.

17And so it was that Mr. Pelletier’s second motion to change was before me on November 18, 2010. That motion involved the very same parties as are involved in this proceeding and the issue was identical to the issue before me today. Indeed, as Mr. Pelletier concedes, even the evidence before me on November 18, 2010 was the same as the evidence before me today. It consists of affidavits sworn by various people in 2006. In his oral submissions before me, Mr. Pelletier urged me to have regard to that evidence and submitted that it clearly proved that the respondent perjured herself in 2003.

18In deciding the present motion, just as I did in deciding the second motion in November of 2010, I have paid close attention to the evidence submitted by Mr. Pelletier. In my endorsement of November 18, I made the following reference to that evidence:

The affidavits and financial statements are sufficiently outdated such that they cannot be relied upon in support of a variation of the present order. Indeed, with hindsight, some of the allegations have been proven inaccurate (such as the allegation, found at para. 21 of John Sawkey’s September 8/06 affidavit to the effect that Mr. Pelletier’s condition is “terminal”).

19The inaccuracy of Mr. Sawkey’s evidence that Mr. Pelletier’s condition is terminal is even more obvious today than it was in November, 2010. In addition, I would point out that the affidavits filed in support of Mr. Pelletier’s motion both in 2010 and at present consist largely of bald allegations, without any detailed evidence in support of them. Thus, even if the matter had not already been finally decided against Mr. Pelletier, it would not be decided in his favour today.

20For these reasons, Mr. Pelletier’s motion to change on the basis that the 2003 order was obtained improperly is dismissed. Although I considered allowing Mr. Pelletier to continue with the motion to change based on alleged material changes in circumstances since the 2003 order was obtained, Mr. Pelletier submitted that the question of quantum of child support should be dealt with in another proceeding. Therefore, I am dismissing Mr. Pelletier’s motion to change in its entirety.

COSTS

21Following submissions on the motions, I requested submissions with respect to the issue of costs. On behalf of his client, Mr. MacRae provided a bill of costs indicating substantial indemnity costs up to and including September 18, 2014 in the amount of $5,787.20, inclusive of disbursements and HST. In addition, he advises that Ms. Mendes was required to attend court on November 13, 2014. Both counsel were in attendance before me, but I am advised that the Bill of Costs seeks costs with respect only to Mr. MacRae’s attendance. Taking into account these additional appearances, Mr. MacRae asks the court to consider awarding costs in favour of Ms. Dale in the all-inclusive amount of $8,000.

22Mr. Pelletier had not yet been provided with a copy of the bill of costs as of the date of the motion. Mr. MacRae undertook to provide him with a copy of the same. Since then, Mr. Pelletier has provided a summary of the legal costs that he has incurred (see his electronic message of January 21, 2015 and the Memorandum attached).

23There is a presumption that the successful party on a motion is entitled to his or her costs: subrule 24(1) of the Family Law Rules, O. Reg. 114/99. Ms. Dale was the successful party in this motion and would ordinarily be entitled to those costs.

24As I indicated I would do during argument, I am providing Mr. Pelletier with an opportunity to make written submissions. He may address both the issue of who should be awarded costs and in what amount. He shall have 20 days from the date of the release of these reasons within which to serve and file written submissions of no more than five typewritten pages, excluding attachments such as statements of account or copies of cases.

25Counsel for Ms. Dale shall have 10 days from the receipt of Mr. Pelletier’s written submissions within which to make a written reply, similarly limited in length.

26All written submissions may be made either by sending hard copies to my assistant, Doris Roy, at the courthouse, 360 Plouffe Street, North Bay, Ontario, P1B 9L5 or by sending electronic versions to her at doris.roy@ontario.ca.

Ellies J.