Hawkins v. Schlosser, 2015 ONSC 646

COURT FILE NO.: FS3160-12

DATE: 2015/01/28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sylvia Hawkins v. Anthony Schlosser

BEFORE: Ellies J.

COUNSEL: In chambers, no one appearing

ENDORSEMENT

[1] By way of an endorsement dated December 16, 2014 I dismissed an “emergency” motion (found at tab 3 of the continuing record) brought by Ms. Hawkins. As I indicated in that endorsement, Ms. Hawkins had failed to satisfy the requirements of s.140(4) of the Courts of Justice Act, R.S.O. 1990 c. 43 (the “CJA”), to obtain leave to bring her motion or to rescind the order I made on April 11, 2013 prohibiting her from commencing any proceeding without leave.

[2] In paragraph two of my December 16 endorsement, I indicated that Ms. Hawkins had brought an application for leave under s. 140 of the CJA, returnable on January 30, 2015. Since making my endorsement, I have reviewed that application (found at tab 5 of the continuing record). As it turns out, my characterization of the application as one in which Ms. Hawkins seeks leave under s. 140(4) of the CJA was incorrect.

[3] Section 140(4)(b) of the CJA requires that the applicant seek only an order rescinding the order made under s. 140(1), and no other relief. The application at tab 5 of the continuing record seeks a number of orders, none of which is an order rescinding the order I made in April 2013 or granting leave under that order.

[4] Further, s. 140(4)(d) of the CJA provides that the Attorney General is entitled to be heard on the application. There is no indication in the continuing record that Ms. Hawkins’ application was served on the Attorney General.

[5] Ms. Hawkins has brought her application under the Family Law Rules, O. Reg. 114/99. Rule 1(7) of the Family Law Rules provides that, where those rules do not cover a matter adequately, the practice shall be decided by reference to the CJA and by reference to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The Family Law Rules do not contain any rules addressing proceedings under s. 140 of the CJA. Therefore, regard must be had to the Rules of Civil Procedure with respect to such proceedings.

[6] Rule 2.1.03(1) of the Rules of Civil Procedure provides that, where a court determines that a person who is the subject of an order under s. 140(1) of the CJA has instituted or continued a proceeding without the order having been rescinded or leave granted for the proceeding to be instituted or continued, the court shall make an order staying or dismissing the proceeding. Rule 2.1.03(2) provides that any party to the proceeding may file with the Registrar a written request for an order under subrule (1).

[7] On January 15, 2015 the court received a letter (incorrectly dated January 14, 2014) from counsel for Mr. Schlosser. The letter, although not referring specifically to rule 2.1.03, constitutes, in my opinion, a written request pursuant to subrule (2) of that rule. In addition, Mr. Schlosser has filed a motion without notice (found at tab 7 of the continuing record), seeking an order dismissing Ms. Hawkins’ application.

[8] For the reasons indicated above, I am hereby dismissing Ms. Hawkins’ application and directing the registrar to remove it from the list of matters to be heard on January 30.

[9] Ms. Hawkins and Mr. Schlosser may make submissions in writing with respect to the issue of costs, limited to five typewritten pages, excluding attachments. Mr. Schlosser may make such written submissions within 20 days of the date of this endorsement. Ms. Hawkins shall have 10 days thereafter in which to respond. In the event that no written submissions are received from Mr. Schlosser, there shall be no order as to costs.

Ellies J.

Date: January 28, 2015