COURT FILE NO.: FS-15-251-00 DATE: 2016-04-13 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HELEN KIM Self-Represented Applicant
- and -
ANDY PEREDERY Self-Represented Respondent
HEARD: January 29, February 24, and April 4, 2016, at Brampton, Ontario
REASONS FOR JUDGMENT
Justice David Price
NATURE OF MOTION
1The applicant, Helen Kim, moves for an order extending the time for serving and filing a Notice of Appeal from an order made by Justice Clay of the Ontario Court of Justice on October 16, 2015. Justice Clay’s order dismissed Ms. Kim’s motion to regularize service of a motion by her to change a final order made by Justice Clay in 2013, which granted custody of Ms. Kim’s children to their father, the respondent, Andy Peredery.
2Justice Clay’s order dated October 16, 2015, additionally directed that Ms. Kim was not to bring any further motions to change the final order unless she either retained counsel or had her documents prepared by a lawyer at the Family Law Service Centre who certified that he had reviewed the previous endorsements made by the court in the proceeding.
3Mr. Peredery opposes Ms. Kim’s motion. Additionally, he has brought his own motion for a declaration that Ms. Kim is a vexatious litigant, and requiring her to seek leave before initiating any further proceedings against him in any court. In addressing the issues raised by these two motions, the court must balance Ms. Kim’s right to have access to the courts with Mr. Peredery’s right to be protected from abuse of the court’s process.
ISSUES
4The Court must determine the following issues:
a) Whether to exercise its discretion to extend the time for Ms. Kim to file a Notice of Appeal from the order of Justice Clay dated October 16, 2015;
b) Whether Ms. Kim should be declared a vexatious litigant and to require her to obtain permission of the court before initiating any further proceedings.
POSITIONS OF THE PARTIES
5Ms. Kim submits that she intended to appeal Justice Clay’s order but was delayed in doing so by the failure of the court to respond in a timely manner to her request to waive the fees for filing a Notice of Appeal.
6Mr. Peredery submits that Ms. Kim failed, without lawful excuse, to comply with the costs orders previously made against her, and to deliver a Notice of Appeal within the time prescribed by the Family Law Rules, and that the court should decline to extend the time for her to do so. He further submits that Ms. Kim has engaged in repeated motions and appeals that have no merit and that she should be declared a vexatious litigant and ordered not to take any more steps in the proceeding without first obtaining the permission of the court.
BACKGROUND FACTS
a) The motion initially made without notice by Ms. Kim
7Helen Kim (“Ms. Kim”) is a 41 year old resident of Mississauga. She seeks to change a final order made by Justice Clay in the Ontario Court of Justice (OCJ) in 2013, which granted custody of the parties’ two children, now 10 and 8 years old, to their father, Andy Peredery (“Mr. Peredery”). Ms. Kim seeks an order granting the parties joint custody of the children.
8On December 18, 2015, Ms. Kim filed a motion in the Superior Court for an extension of time to appeal to this court from an order made by Justice Clay on October 16, 2015. Her motion came before Regional Senior Justice Daley of this court, in Chambers, on December 21, 2015.
9Ms. Kim’s motion, which was assigned Court File No. FS-15-251-00 in this court, was in “Form 14B”, being a motion made without notice to Mr. Peredery. Mr. Peredery is 42 years of age and resides in Caledon, Ontario, with the parties’ two children.
10Apparently because Ms. Kim’s motion concerned a final order of child custody made in the Ontario Court of Justice, Justice Daley, on December 21, 2015, directed that it be served on Mr. Peredery and be made returnable in court, where both parties could be heard before a decision was made.
b) Documents in the Continuing Record of this Court
11Ms. Kim’s affidavit, and the attached exhibits, referred to an endorsement made by Justice Clay in the O.C.J. on September 22, 2015. In that endorsement, Justice Clay ordered Ms. Kim to serve her motion personally on Mr. Peredery. Ms. Kim did not include a copy of Justice Clay’s endorsement dated September 22, 2015, in the material that she filed in this court in relation to her motion to extend the time for delivering a Notice of Appeal from the later order of Justice Clay, made on October 16, 2015.
12According to a Change Information Form (Form 15A), that Ms. Kim attached as an exhibit to her affidavit, her children reside with their father and paternal grandmother, and with Ms. Kim and her mother. The Change Information Form does not specify the exact parenting schedule or arrangements. The Form is completed in handwriting, and the information regarding each child’s residence does not appear on separate lines, which makes it difficult to interpret.
13Ms. Kim’s affidavit states that she tried to serve her Motion to Change personally on Mr. Peredery, in compliance with Justice Clay’s order of September 22, 2015, by means of a taxi cab, but that Mr. Peredery refused to accept the documents. She says that she then telephoned the court office and, while she says she was not given legal advice, (as the court staff is not authorized to provide legal advice), she says that the information she received caused her to believe that if she was unable to deliver the documents personally to Mr. Peredery, faxing them to him might be acceptable.
14Ms. Kim states that she sent her Motion to Change and the supporting material, consisting of 38 pages in total, to Mr. Peredery at his employment fax number. When she re-filed her motion in the OCJ, it came before Justice Clay in Chambers on October 16, 2015. Justice Clay dismissed the motion, according to Ms. Kim, because she had failed to serve her Notice of Motion personally on Mr. Peredery. He ordered that Ms. Kim not bring further motions to change his final order of 2013 unless she retained counsel or had her documents prepared at the Family Law Service Centre.
15Ms. Kim states that she spoke to a duty counsel at the Family Law Information Centre, who referred her to a web site, “justice.net.” She states that she then contacted a lawyer, Christine Sepuya, at justice.net, but could not afford the retainer fee of $1,000 that Ms. Sepuya would have charged her.
16Ms. Sepuya referred her to a colleague of hers, Candace, who also worked with justice.net.
17Ms. Kim states that she withdrew her motion for leave to appeal in this court, being court file Number FS-15-251-00, and on December 10, 2015, spoke to Candace, who informed her that she could meet with Ms. Kim on December 14th. Candace informed her that Ms. Kim could bring a motion to change in the Ontario Court of Justice, or that Candace could refer her to a colleague of hers to prepare a motion for leave to appeal to the Superior Court, to allow her motion to change to proceed in the Ontario Court of Justice.
18Candace further informed Ms. Kim that she might not be able to take her case if she had initially met Ms. Kim in Candace’s capacity as duty counsel at the Family Law Information Centre. On December 14, Candace confirmed that she was unable to take Ms. Kim’s case, as she had first met her at the Family Law Information Centre.
19Ms. Kim states that she next spoke to John Silvester, a lawyer at the Family Law Information Centre, who informed her that the Family Law Service Centre had rejected her request, apparently because it did not fall within its mandate. The web site of the Family Law Service Centre states:
Family Law Service Centres serve eligible clients going to family courts located in their area by offering:
(a) help with documents (b) referrals to staff advice lawyers (c) full representation in family law cases by a staff lawyer (d) if eligible, referral to a private lawyer who does legal aid work (e) mediation and settlement conferences (f) referrals to other social service agencies (g) They may recommend that you apply for full representation by a lawyer for serious cases that are either complex or involve domestic violence or child protection.
20With regard to her intention to appeal from Justice Clay’s dismissal of her motion to change, Ms. Kim stated the following in her supporting affidavit:
- I requested a fee waiver from the Superior Court sometime around November 5. I received a call within a few days of November 27 stating the fee waiver was granted and it would be mailed out to me.
- As a result of the delay, I was not able to file my appeal within 30 days of the order dated October 16, 2015. So I am asking the court for an extension of time to file my appeal.
21Ms. Kim implies that it was as a result of the court’s delayed response to the request which she had made on November 5, 2015, for a fee waiver, that she was unable to file her Notice of Appeal within 30 days after Justice Clay’s order made on October 16, 2015.
22According to an affidavit of service that Ms. Kim swore on January 25, 2016, she mailed her motion to the Superior Court, dated December 1, 2015, which was still in the form of a Form 14B motion, to Mr. Peredery on January 18, 2016. She then attended in this court on January 29, 2016, when the motion, now assigned a new Court File No. FS-15-251-00ML, was scheduled to be heard. There was no responding material from Mr. Peredery before the court that day, and Mr. Peredery was not in court for the hearing of the motion.
c) The hearing on January 29, 2016
23Ms. Kim’s Notice of Motion stated, “I would like to request an extension of time to file a notice of appeal, for the order of Justice Clay rendered October 16, 2015”. Immediately following the Notice of Motion, in the Continuing Record of this court, were two pages of an endorsement dated October 16, 2015, from the Ontario Court of Justice. The endorsement stated:
In Chambers First Motion: I read the Motion Form of the A/M (which I interpret to mean “above-mentioned”) at tab 15 and her Affidavit (with exhibits) at tab 16 (which I interpret to mean, “tab 15 of the continuing motion record”). Second Motion: I read the Motion Form of the A/M at tab 17; and her Affidavit at tab 18 of the C.R. (which I interpret to mean the “continuing record”). I will deal with the Second Motion first Second motion (to regularize service by fax) My endorsement of Sept. 22/15 stated that any subsequent motion for leave must be personally served upon R/F (which I interpret to mean “respondent/father”). A/M’s affidavit stated that she sent documents in a cab but R/F refused to accept them from the cab driver. She then claims a person at the court told her she could serve by fax. She faxed 38 pages of documents to a fax # that she states is the one where the R/F works. The company is not mentioned, the fax was successfully transmitted somewhere but I have no evidence as to whether it would come to R/F’s attention. 1st Motion for leave to bring M. to C. (which I interpret to mean “motion to change”) Motion denied. The motion was not personally served as required (see above). The draft M. to C. above does not set out any material
24It was evident to this court on January 29, 2016, from the wording on the above two pages, that they do not contain the entire endorsement made on October 16, 2015. In particular:
- The second page does not contain the author’s name or signature;
- The two pages are marked 1/3 and 2/3, respectively, and there is no page marked 3/3;
- Each of the two pages contains an arrow at the bottom right of the page that points to further content on the next page; and
- The last sentence on page 2 is incomplete.
25At the hearing on January 29, the court asked Ms. Kim about the third page of the October 16, 2015, endorsement. The following exchange ensued:
THE COURT: I don’t have the last page of – it was Justice Clay, was it, the endorsement that was made October 16, 2015, that you’re appealing from or wanting to appeal from? I have the first two pages, but I don’t have the last page. HELEN KIM: Your Honour, in this set of documents that I filed for this Notice of Motion… THE COURT: Yeah. HELEN KIM: … I don’t think I included as an exhibit the endorsement of Justice Clay. So I would think that would have been provided by maybe your court staff, Your Honour. THE COURT: Really? I’ve got it right after the motion form. HELEN KIM: Oh. THE COURT: I had assumed it was attached to it, but it’s not. HELEN KIM: Pardon me, your Honour? THE COURT: It’s not attached to your motion form, the 14(b) motion form that was stamped December 2nd, 2015. That didn’t have the endorsement attached to it. HELEN KIM: Oh, I only brought forward the Form 14 [Notice of Motion] and 14(a) [Affidavit] for this motion, Your Honour. I didn’t include as exhibits anything else that I’d filed previously. THE COURT: Okay. [Emphasis added]
26The court asked Ms. Kim specifically what her understanding was as to why Justice Clay had directed that any further motion made by her had to be personally served on Mr. Peredery. The court also asked Ms. Kim whether she had brought any motions to change the final order before the one that was before Justice Clay on September 22nd. The following exchange occurred in this regard:
THE COURT: Let me just ask you this. It appears that Justice Clay ordered that, on September 22nd, and I don’t have his endorsement from that date – that any subsequent motion for leave must be personally served. Why was that order made, according to your understanding? HELEN KIM: Your Honour, I did ask – or, I should say, I didn’t specifically ask that question, but I brought that endorsement to the Family Law Information Centre. I do remember that a lawyer just explained to me that what it meant, what I did need to personally serve it. But I – I didn’t get any background as to why that order was made. THE COURT: Well, why were you before the court on September the 22nd? HELEN KIM: I – I was trying to request a motion to change, maybe perhaps not filling out that specific form at that time, but… THE COURT: Okay, Motion to change a final order? HELEN KIM: Yes. Yes, Your Honour. THE COURT: And what were you trying to change in that final order? HELEN KIM: So, I was looking for a change of custody and access… THE COURT: I see. HELEN KIM: …which had been – had been part of the order, the final order of Justice Clay in October of 2013. THE COURT: And had you brought any previous motions to change that order? HELEN KIM: No, Your Honour. I mean, from there I did take it to Superior Court. THE COURT: Yes. You appealed from the order. HELEN KIM: Yes, Your Honour, but I hadn’t brought it back to the court since 2013. [Emphasis added]
27The court proposed to recess for lunch, so that it could study the documents that Ms. Kim had submitted, and then hear further submissions from her when court resumed. However, Ms. Kim advised the court that she was in a hurry to attend a meeting that afternoon, which would last until 4:50 p.m., and would be unable to return that day, so the court reserved judgment on her motion.
28When the court, after reserving its judgment, reviewed the documents in the Continuing Record in this court, it concluded that it was unable to determine whether it should extend the time within which Ms. Kim was required to appeal from the order made on October 16, 2015, until it had the full endorsement made on that date, and until it heard further submissions from Ms. Kim. The court therefore summoned both parties to return to court on February 24, 2016.
d) The hearing on February 24, 2016
29Both Ms. Kim and Mr. Peredery attended court for the resumption of the motion on February 24, 2016. In order to complete the evidentiary record in respect of the order from which Ms. Kim seeks to extend the time to appeal, the court called Josie Eusepio, a Supervisor of the Superior Court Registrar’s Office in the Brampton Courthouse, to testify concerning the statement that Ms. Kim had given on January 29, 2016, to the effect that the first two pages of the endorsement of the Ontario Court of Justice dated October 16, 2015, were not filed by Ms. Kim, but “would have been provided by maybe your court staff.”
30Ms. Eusepio testified that the two pages of the Ontario Court of Justice’s endorsement dated October 16, 2015, would have to have been filed by Ms. Kim. She stated that a Superior Court of Justice clerk would not have obtained the endorsement from the Ontario Court of Justice and filed it in the Continuing Record of the Superior Court. She explained that the only documents that are placed in the Continuing Record of this Court are documents filed by the litigants. Ms. Eusepio stated:
The two pages would have originated from the filing party. The Superior Court staff would not attend at the Ontario level and ask for copies of any such document. It’s up to the filing party to provide any documents they wish to be a part of the record.
31Ms. Kim was given an opportunity to cross-examine Ms. Eusepio. The following exchange then occurred:
MS. KIM: I see, okay. I remember when I assembled the documents for this specific motion, I did attend to, I think it was either wicket 19 or 20, beside wicket 21. And one of your colleagues at the wicket did provide, at some point, did provide a stapled together set of documents of previous endorsements and orders. I think they were all in the Justice’s handwriting. So I didn’t necessarily catch everything from the very beginning of what was said just today. You know, I – obviously, I’m late. But is, are we trying to clarify why there were pages missing from Justice Clay’s order? MS. EUSEPIO: So, from the court’s perspective, the only copies that you would have obtained from the Superior Court clerk would have been anything from the Superior Court file. So I can’t speak to the set of documents that you were provided that was stapled. But it only would have been anything from the Superior Court file. That’s all that they would have had accessed [sic] to. MS. EUSEPIO: If you were at windows 19 or 20, it would specifically catering [sic] to the Superior Court business line. MS. KIM: Okay. MS. EUSEPIO: And they would not have taken anything from the Ontario Court file unless it was something that was a part of the Superior Court file and you request it. MS. KIM: Right. MS. EUSEPIO: So those counters specifically serve Superior Court. MS. KIM: Okay. MS. EUSEPIO: So there’s no affiliation with the Ontario Court. MS. KIM: So it is possible that, it is possible that let’s say in the first motion that I file with the Superior Court for 15-251, when I did obtain the orders at that time in October of 2015, I would have had to initiate that first motion if I were to have included any of the Ontario Court endorsements and orders, I would have had to go to a wicket for the Ontario Court to get those photocopies? MS. EUSEPIO: That’s correct. [Emphasis added]
32Theresa Rose-Klyn, an Acting Group Leader of the Civil Office of the Ontario Court of Justice at Brampton, testified that the two pages of the October 16, 2015, endorsement of the Ontario Court were the first two of three pages of an endorsement made on that date by Justice Clay of the Ontario Court of Justice. She stated that the endorsement was made by Justice Clay in Chambers, and that Ms. Rose-Klyn herself made a photocopy of the three page endorsement on October 20, 2015, and gave the copy to Ms. Kim. She also mailed a copy of the endorsement to Mr. Peredery. The following exchange occurred:
THE COURT: Thank you, and that endorsement of Justice Clay consisting of three pages, if somebody had asked for that endorsement, are there any circumstances you can think of that would account for only two pages of the endorsement being given to the person? A. We make the photocopies when the client attends at the counter and requests a photocopy of the endorsement. THE COURT: All right. A. I can’t say that a hundred percent that there isn’t or is a possibility that something could go wrong. The court staff are very diligent when making the copies to make sure that they’re providing the copies to the client and that they’re proper. But things do happen in the course of working in the administration department where things do get caught in photocopiers, things can happen. THE COURT: All right. A. So I can’t say to you 100 percent, no that third page was there, not there. But I personally was the one who actually did this. THE COURT: Is that right? A. Yes, it’s my initials that are on the document. THE COURT: Yes. A. And on October the 20th, I phoned the applicant, and I advised the applicant over the phone and I provided the applicant with photocopies of the complete endorsement at the courter in person. [Emphasis added]
33Ms. Rose-Klyn was certain in her evidence when later cross-examined by Ms. Kim:
MS. KIM: So, Theresa, is it possible that, that if even if the endorsement was processed and provided on October 20, the endorsement is, it continues to be in the Ontario Court file and then if I were to have come later to file my motion in Superior Court and I requested at the wicket to have a copy of that endorsement that the photocopy would have been made from what was placed in the file? A. Okay, so Superior Court would never provide you with an Ontario Court of Justice endorsement. You would attend at the wicket, which is what you did that day, you would have obtained a copy of the endorsement. You would have taken that endorsement and you would have used it as part of your materials for filing the motion in the Superior Court of Justice. Obtained a different ticket number. Attended at the counters that do the Superior Court of Justice, which is, I think, 15 to 20. And then that’s where you would have filed your 14B motion along with attaching a copy of your endorsement. A: At no time would the Superior Court staff come through the administration office to the Ontario Court administration office and say, “Hey, we have a client at the window and we want a copy of the endorsement from the file.” That does not happen. [Emphasis added]
34Ms. Rose-Klyn produced the original endorsement file from the proceeding in the Ontario Court of Justice, in which Justice Clay’s endorsement from October 16, 2015, appears. She also produced photocopies of all of the endorsements from that file, which were marked as Exhibit 1 at the hearing of the present motion.
35I have reviewed the endorsements made in court file no. 220-13 of the Ontario Court of Justice. They can be summarized as follows:
a) April 29, 2013: Justice Clay, in Chambers, endorsement states:
I have reviewed the Motion Form at Tab 6 and the supporting Affidavit of the Applicant at Tab 7. It appears from the documents filed that the children primarily reside with the Respondent and that there are currently restrictions on the Applicant’s access. The issue of access needs to be addressed such that the June 4, 2013 C/C [Case Conference] should not be vacated.
In his order, Justice Clay directed that the Case Conference would proceed on June 4 on the issues before the court only unless the Applicant complied with paragraph 2. The Applicant was directed to prepare a draft Amended Application and a sworn Financial Statement with all attachments which was to be served on the Respondent’s counsel by May 21, 2013.
b) June 4, 2013: Justice Clay’s endorsement indicates that Mr. Peredery wanted sole custody and that joint custody would not work. Ms. Kim was under the terms of a conditional discharge with 12 months’ probation imposed February 1, 2013 due to an assault upon Mr. Peredery. Ms. Kim had appealed the guilty finding and stated that the appeal was to be heard on the week of June 20, 2013.
Justice Clay noted that the 2 children, then 7 and 5 years of age, had been residing with Mr. Peredery since the parties’ physical separation in September 2012. Mr. Peredery had delivered them to Ms. Kim every Friday and picked them up Sunday on the condition that Ms. Kim’s father was present at all times. Ms. Kim’s father was with her for an indefinite period and the status quo was ensuring that both parents spent significant time with the children. Justice Clay directed that the matter would be adjourned to a Settlement Conference on October 15.
Justice Clay made a temporary order that Mr. Peredery would have custody of the children and Ms. Kim would have access from Friday to Sunday every weekend, and mid-week access as arranged between the parties, such access to be supervised by Ms. Kim’s father Roy Hashida. If Mr. Hashida was no longer available to supervise, access was to be supervised by an agreed third party at such times as were available to the third party with the intention that the children would see their mother at least twice per week for at least three hours on each occasion.
Justice Clay further ordered that if Ms. Kim continued to seek custody or joint custody, she had leave to bring the appropriate motions on notice to the third parties involved for police, C.A.S. and mental health records, returnable at the Settlement Conference.
c) Oct. 15, 2013: (The Final Order for Custody/Access). Justice Clay notes in his endorsement that Ms. Kim had appealed her criminal conviction to the Court of Appeal. She linked the criminal/family matters and “while somewhat articulate, the Applicant clearly is not going to comply with orders of this court as has been evidenced.”
Justice Clay further notes that Ms. Kim had appealed his June 4, 2013, order to the Superior Court of Justice. She had not attended at the date for scheduling the appeal and her appeal had been dismissed. Mr. Peredery had filed a Request for Information which Ms. Kim had ignored. Ms. Kim had not served and filed a Settlement Conference brief as required. Mr. Peredery had complied with the access provisions of the June 4 order. He had come back to court for the conference, but nothing could be done because of Ms. Kim’s failure to provide information.
Justice Clay ordered that Ms. Kim’s pleadings be struck and that the access provisions of the June 4, 2013 order be final. He further ordered:
The Applicant shall ensure that she conducts herself appropriately when the children are in her care and presence, and shall notify the Respondent immediately if she is unable or unwilling to care for them.” He further ordered that Ms. Kim have access regarding the children from third parties and was entitled to attend any school or extracurricular events of the children.
The Applicant shall pursue mental health care and shall follow all recommendations, and take all medications, prescribed by her mental health care professional. The Applicant shall provide proof of her ongoing care from time to time and when requested by the Respondent. He further ordered Ms. Kim to pay Mr. Peredery’s costs in the amount of $2,000.
The Applicant may not bring any proceedings to change this order without paying this costs order and the $1,500 costs ordered by the Superior Court of Justice for the appeal unless she obtains leave of the court to do so. [Emphasis added]
d) July 28, 2015: Justice Clay made an endorsement in Chambers on that day, indicating that Ms. Kim had sought leave to bring a motion to change his final order of October 15, 2013, that granted custody to Mr. Peredery and supervised access to Ms. Kim. He noted that the order had provided that no motion to change could be brought without paying the $2,000 costs Justice Clay had ordered and the $1,500 costs ordered by the Superior Court of Justice on Ms. Kim’s unsuccessful appeal, unless leave was granted.
Justice Clay noted the Ms. Kim’s affidavit did not state if any costs had been paid. It set out no reason why the court should grant leave and made no reference at all to the costs orders. The affidavit simply attached a proposed motion to change in which Ms. Kim wished to seek joint custody. Justice Clay denied Ms. Kim’s motion. [Emphasis added]
e) Sept. 1, 2015: Justice Clay made an endorsement in Chambers on that date. He stated that he had read the motion form at tab 11 and Ms. Kim’s affidavit at Tab 12 of the Continuing Record, and had re-read the motion form at tab 9 and the affidavit at tab 10. He noted that the last motion had attempted to address the issue of the failure to pay outstanding costs orders. Ms. Kim stated that she had very modest income and significant debt. Justice Clay observed, “This may well be the case, although the financial information provided does not include tax records, i.e. Notices of Assessment.”
Justice Clay continued, “If there is a genuine issue concerning the best interests of children an inability to pay outstanding costs should not be a complete barrier to accessing the courts. However in this matter the final order of Oct. 15, 2013, which was upheld on appeal, provides that the A/M [Applicant/Mother] shall have access to the 2 children supervised by her father or agreed upon 3rd party. The A/M now asks for a removal of “conditions” which I assume means supervision, and seeks joint custody. Her draft Motion to Change provides no information as to any material change in circumstances that might have occurred since the final order was made. There is no genuine issue raised in this matter. With that, he dismissed the motion. [Emphasis added]
f) Sept. 22, 2015: Justice Clay made a further order in Chambers on that date. He stated that he had read Ms. Kim’s motion form at tab 13 and her affidavit at tab 14 of the Continuing Record. He stated, “This motion is basically the same as the motion I dismissed on Sept. 1/15. The only difference is that the A/M has set out the amount of her debt. This motion will also be dismissed but not because the A/M has failed to pay costs. The A/M wants to bring a Motion to Change to seek joint custody but she has not shown that there has been any material change in circumstances since the first order. He ordered:
- The motion is dismissed
- The A/M [Applicant/Mother] may not bring any 14B motions w/o [without] notice. If A/M seeks to bring another motion for leave to file a Motion to Change w/o paying costs. She must: a) personally serve the Notice of Motion on R/F [Respondent/Father] (she cannot serve herself but another adult person must do it); b) file a F.S. [Financial Statement] attaching her last 3 years N. of A. [Notices of Assessment] and income tax data; c) attach a draft M of C [Motion to Change] which specifically sets out the material change in circumstances that she states has occurred.
g) Oct. 16, 2015: This was the endorsement referred to above. When the third page is included, it discloses that there were two motions before Justice Clay that day and that he made a further endorsement in Chambers concerning them. With regard to the first motion, he said that he had read Ms. Kim’s Motion Form at tab 15, and her affidavit (with exhibits) at tab 16. With regard to the second motion, he had read her Motion Form at tab 17 and her affidavit at tab 18 of the Continuing Record.
With regard to Ms. Kim’s second motion, which was to regularize service by fax, Justice Clay wrote: “My endorsement of Sept. 22/15 stated that any subsequent motion for leave must be personally served upon R/F [Respondent/Father]. A/M [Applicant/Mother]’s affidavit stated that she sent documents in a cab but R/F refused to accept them from the cab driver. She then claims a person at the court told her she could serve by fax. She faxed 38 pages of documents to a fax# that she states is the one where R/F works. The company is not mentioned, the fax was successfully transmitted somewhere but I have no evidence as to whether it would come to R/F’s attention. I am not prepared to regularize this service as a substitute for the personal service I required. In addition to above concerns, Rule 6(12) and (13) were not complied with so even if I did permit fax service, which I do not, it was not done properly.
With regard to the 1st motion, which was for leave to bring a Motion to Change, Justice Clay wrote that the motion was denied. He stated: “The motion was not personally served as required (see above). The draft Motion to Change above does not set out any material change in circumstances. There was a reason that A/M access was to be supervised by her father Roy Hashida. The A/M keeps bringing motions for leave to seek joint custody, but I will not re-open this matter unless there is some evidence suggesting a.m.c.i.c. [a material change in circumstance]. Order:
- The A/M may not bring any further motions to this court and litigation staff are instructed to not process same unless: a) The A/M is represented by counsel or b) The A/M has attended at the Family Law Service Centre and had her documents prepared there by a lawyer who acknowledges that he/she has been provided with all endorsements since the final order. c) The above requirements do not extinguish the other prerequisites for a leave motion set out in earlier orders.
36The above chronology of orders discloses that, contrary to the statement that Ms. Kim made to the court on January 29, 2016, in which she indicated that she had not brought any motions to change Justice Clay’s final order from the time it was made until she appeared before Justice Clay on October 16, 2015, she had, in fact, brought such motions, or sought leave to bring them, on September 1 and September 22, 2015.
37Ms. Kim’s “Change Information Form”, which she prepared in support of the Motion to Change which she had brought before Justice Clay on October 16, 2015, and which she included in her motion record in this court, states that she asks the court to award joint custody to her and Mr. Peredery. It provides, as her reasons: “so that the children can have both parents fully able to support their education, both at public school and other educational activities like sports, music, art.”
38Ms. Kim’s omission of the third and final page of Justice Clay’s endorsement of October 16, 2015, from the material that she filed with her motion for an extension of time to appeal, and which were filed immediately following her Notice of Motion in the Continuing Record, is troubling for several reasons:
a) Justice Clay’s complete statement that “The draft M. to C. [Motion to Change] above does not set out any material change of circumstances” makes it clear that he dismissed her motion, not only based on the procedural defect, namely, her failure to effect personal service of it on Mr. Peredery, as required by the court’s earlier order, but for the substantive reason that previous proceedings had disclosed grounds for requiring her access to her children to be supervised, and that her new motion failed to disclose any material change of circumstances that rendered such supervision, or other broadening of her access, unnecessary. b) Justice Clay’s statement that “The A/M [Applicant/Mother] keeps bringing motions for leave to seek joint custody” contradicts Ms. Kim’s statement to the court that the motion to change Justice Clay’s final order, which she brought before the O.C.J. in October 2015, was the first such motion she had brought to that Court since 2013. c) Justice Clay’s order that “The A/M may not bring any further motions to this court and litigation staff are instructed to not process same unless (a) the A/M is represented by counsel or (b) the A/M has attended at the Family Law Service Centre and had her documents prepared there by a lawyer who acknowledges that he/she has been provided with all endorsements since the final order was evidently made in the exercise of the O.C.J.’s jurisdiction, under Rule 14(21) of the Family Law Rules, to control vexatious litigants, and was designed to require a lawyer’s involvement as a means of ensuring that Ms. Kim did not abuse the court’s process by bringing further motions that were without any semblance of merit. d) The unfavourable light in which the last page puts Ms. Kim, owing to her earlier conduct in the O.C.J. proceeding, casts considerable doubt as to the truth of her statement to the court that she had not filed any part of Justice Clay’s endorsement with this court. It suggests that she intentionally filed the first two pages and omitted the final page.
ANALYSIS AND LAW
a) Should Ms. Kim be granted an extension of time to appeal?
39Justice Clay’s refusal to dispense with the requirement for personal service of Ms. Kim’s Notice of Appeal involved an exercise of the court’s discretion. Rule 6(18) of the Family Law Rules provides:
6 (18) When a document has been served by a method not allowed by these rules or by an order, the court may make an order approving the service if the document, (a) Came to the attention of the person to be served; or (b) Would have come to the person’s attention if the person had not been evading service. [Emphasis added]
40The words “may make an order” confer discretion on the court to refuse to make an order approving an alternative form of service, even where service by the means employed caused the document to come to the attention of the person to be served, or would have brought it to his attention if he had not been evading service.
41The reasons that Justice Clay gave, on the final page of his endorsement, disclose that there was an adequate basis for his exercise of discretion. This court, on appeal from his decision, should not substitute its own exercise of discretion. However, if I were doing so, I would exercise my discretion no differently than Justice Clay.
42Ms. Kim seeks an extension of time for applying for leave to appeal from Justice Clay’s order dismissing her motion to change. Leave is not required to appeal from a final order of the O.C.J. regarding custody of, or access to, children. In proceedings under the Divorce Act, leave to appeal is required for an appeal from an interim order regarding custody and access. Section 21(6) of the Divorce Act provides, in this regard:
21(6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.
43The Court of Appeal, in Elgner v. Elgner, in 2011, held that by virtue of s. 21(6), an appeal from an interlocutory order made under the Divorce Act is subject to the leave requirements in the Courts of Justice Act, s. 19(1). That section provides, in part:
19(1) An appeal lies to the Divisional Court from, c) An interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court.
44Appeals from interlocutory orders of the Ontario Court of Justice in proceedings under Part III of the Children’s Law Reform Act, respecting custody, access, and guardianship, are governed by section 73 of the Act. That section provides:
- An appeal from an order of the Ontario Court of Justice under this Part lies to the Superior Court of Justice.
45The Courts of Justice Act, which applies to decisions of the Ontario Court of Justice and of the Superior Court of Justice, requires leave of the appellate court where an appeal is to be taken from a consent order, or an order respecting costs alone. Section 133 of the Act provides, in that regard:
- No appeal lies without leave of the court to which the appeal is to be taken, (a) from an order made with the consent of the parties; or (b) where the appeal is only as to costs that are in the discretion of the court that made the order for costs.
46Apart from consent orders and orders dealing solely with costs, there is no provision in the Courts of Justice Act requiring that leave be obtained from the Superior Court of Justice before appealing from an order made by the O.C.J.
47There is no provision in the Children’s Law Reform Act that is equivalent to s. 21(6) of the Divorce Act, which specifically applies sections 62 to 64 of the Rules of Civil Procedure to appeals under that Act.
48Rule 1 (7), Family Law Rules, states, in this regard:
MATTERS NOT COVERED IN RULES
1 (7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
49Having regard to the specific provision of s. 21(6) Divorce Act, and the absence of such a provision from the Children’s Law Reform Act, it cannot be said that the Family Law Rules do not adequately cover the matter of an appeal. It is only where the Family Law Rules do not adequately cover a matter that the Rules of Civil Procedure apply to a family law proceeding.
50The Family Law Rules establish timelines for appeals from orders made by the O.C.J. Rule 38 provides, in part, in this regard:
38(4) Sub-rules (5) to (45) apply to an appeal from an order of the Ontario Court of Justice to the Superior Court of Justice under: (b) section 73 of the Children’s Law Reform Act. (5) To start an appeal from a final order of the Ontario Court of Justice to the Superior Court of Justice under any of the provisions listed in sub-rule (4), a party shall, (a) Within 30 days after the date of the order or decision being appealed from, serve a notice of appeal (Form 38) on: (i) every other party affected by the appeal…. (6) Sub-rule (5) applies to the starting of an appeal from a temporary order of the Ontario Court of Justice to the Superior Court of Justice, except that the notice of appeal shall be served within seven days after the date of the temporary order. [Emphasis added]
51Rule 3(5) of the Family Law Rules confer discretion on this court to lengthen the time limits set by the Rules, including the time for appealing from an interlocutory order of the O.C.J. Rule 3(5) provides, in this regard:
3(5) The court may make an order to lengthen or shorten any time set out in these rules or an order, except that it may lengthen a time set out in sub-rule 33(1) (timetable for child protection cases) only if the best interests of the child require it.
52For the following reasons, this court does not exercise its discretion to extend the time for appealing from Justice Clay’s order:
(a) Ms. Kim did not demonstrate an intention to appeal within 7 days after Justice Clay made his order. In particular: (i) Ms. Kim, on her own evidence, did not request a fee waiver from this court for filing a Notice of Appeal until November 5, 2015, more than 7 days after Justice Clay’s order. (ii) Ms. Kim consulted the Family Law Information Centre on December 10, 2015. (b) Ms. Kim’s draft Notice of Motion to Change the final order of Justice Clay from 2013 does not raise a ground that discloses a material change of circumstances, or disclose that a change would be in the children’s best interests. (c) Ms. Kim failed to disclose relevant information in her motion. In particular, she failed to disclose the third and final page of Justice Clay’s order. (d) Ms. Kim has made previous motions to the Ontario Court of Justice to change the final order of Justice Clay from 2013, and on October 16, 2015, Justice Clay concluded that she had failed to disclose any reason to change the 2013 order. (e) Ms. Kim was not forthright to the court in stating, on January 29, 2016, that she had not brought any previous motions to change Justice Clay’s custody order. In fact, Justice Clay notes in his endorsement dated September 22, 2015: “This motion is basically the same as the motion I dismissed on Sept. 1/15.”
b) Should Ms. Kim be declared a vexatious litigant, and be required to seek leave before initiating further proceedings involving Mr. Peredery?
53Mr. Peredery has filed an extensive motion record, attaching the previous orders of the court in proceedings brought by Ms. Kim. These include the following:
a) On June 6, 2013, Justice Clay, at an initial Case Conference in the Ontario Court of Justice, granted Mr. Peredery temporary custody of the parties’ children. b) On August 12, 2013, I dismissed Ms. Kim’s appeal from Justice Clay’s temporary custody order. I wrote:
Ms. Kim has not attended today to set a date for the hearing of her appeal from the temporary order of Justice Clay dated June 4, 2013. The Registrar has called the telephone number that Ms. Kim provided to the court (647-393-1553) and there was no answer. There is no explanation that has been offered for Ms. Kim’s non-attendance today.
Ms. Kim was late filing her Notice of Appeal. She was required to deliver Notice of Appeal from a temporary order within 7 days of the order and did not file her Notice of Appeal until July 8 from the Order made June 4. Ms. Kim, when informed that her appeal was late, filed a Notice of Motion on July 8, 2013, to extend the time for her delivering the Notice. However, Mr. Peredery’s counsel informs the court that the motion was never served on his client and that he had no knowledge of the motion until the court advised him of it today.
While the record suggests that Ms. Kim may suffer from a mental illness, Mr. Peredery’s counsel notes that Justice Clay, and the judge at the trial of the criminal charge of assault of which she was convicted urged her to seek an assessment of and treatment for her condition and that she declined.
In these circumstances and for the reasons given above, it is ordered that Ms. Kim’s appeal is dismissed. She is ordered to pay Mr. Peredery’s costs of the appeal which in the absence of a Costs Outline I fix at $1,500, payable by September 12, 2013.
c) At a Settlement Conference in the Ontario Court of Justice on October 15, 2013, Justice Clay struck Ms. Kim’s pleadings due to her failure to respond to Mr. Peredery’s Request for Information, and made a final order granting Mr. Peredery full custody, with access by Ms. Kim to be supervised. He ordered Ms. Kim to pay Mr. Peredery’s costs of the proceeding fixed in the amount of $2,000. He further ordered:
The Applicant [Ms. Kim] may not bring any proceedings to change this order without paying this cost order and the $1,500 costs ordered by the S.C.J. for the appeal unless she obtains leave of the court to do so.
d) At a hearing in the Superior Court on December 16, 2013, Justice Seppi noted that Ms. Kim had not filed her notice of appeal from Justice Clay’s order of October 15, 2013, within the requisite time, nor applied to extend the time for bringing her appeal. She also had not complied with Justice Clay’s order requiring payment of costs before further proceedings were brought to change the order. Her Notice of Appeal also did not show any grounds for her appeal. For these reasons, Justice Seppi dismissed the appeal without prejudice to a motion to extend the time to appeal upon proper grounds and upon paying the costs ordered or, in the alternative, providing evidence to satisfy grounds for failure to pay the costs. Justice Seppi ordered Ms. Kim to pay Mr. Peredery’s costs of the hearing at $800 forthwith.
e) At a hearing on January 10, 2014, of a further appeal by Ms. Kim from Justice Clay’s order, Justice André noted that Ms. Kim had paid none of the costs and had not complied with any of the conditions Justice Seppi had imposed for bringing an appeal. Justice André therefore dismissed her appeal with costs fixed at $1,000 to be paid forthwith. He added:
Further to Justice Clay’s order of November 6, 2013, the applicant [Ms. Kim] may not bring any further proceedings to change Justice Clay’s order or any of the Superior Court orders of Justice Price, Justice Seppi and this order without paying the outstanding costs orders of $5,300 unless she obtains the leave of the court to do so.
Justice André further ordered that once she paid the outstanding costs, Ms. Kim would be required to seek leave of the court before bringing any further motions to change the order of Justice Clay.
f) On January 16, 2015, a further motion in Form 14B by Ms. Kim was brought to the Superior Court, apparently for leave to appeal from Justice Clay’s order. Justice Edwards wrote on the accompanying internal memo, “No motion until costs paid, unless order of January 10, 2014, is successfully appealed.”
g) On March 6, 2014, a further motion by Ms. Kim to the Superior Court was dismissed by Justice MacKenzie. He wrote:
Applicant’s motion is premature, in that the endorsement/order of Skarica J. [sic] on Internal memo dated January 16, 2014, states that Applicant has no standing to move for leave to proceed herein until outstanding costs orders are paid, unless the order dated January 10, 2014, is successfully appealed. Her present motion is dismissed without prejudice to permit her to renew such motion upon successfully appealing the January 10, 2014, order.
h) On March 26, 2014, Ms. Kim’s motion to the Court of Appeal for an extension of time to appeal from the January 10, 2014, order of Justice André, dismissing her motion for an extension of time to appeal from the October 15, 2013, order of Justice Clay of the OCJ was dismissed. Associate Chief Justice Hoy noted that Ms. Kim’s motion before Justice André was her second motion for an extension of time, after her first such motion was dismissed by Justice Seppi without prejudice to her bringing the motion by serving and filing materials within 10 days, upon evidence establishing, proper grounds and upon either payment of the costs previously ordered or evidence to satisfy grounds of a failure to pay the costs. Associate Chief Justice Hoy continued:
On this motion, Ms. Kim provides no evidence explaining her delay in appealing the order of André J., or establishing an intention to appeal within the applicable period. In her Notice of Appeal, she does not allege that André J. erred in fact or law, and provides no materials going to the merit of her appeal of André J’s order. The interests of justice do not favour the requested grant of an extension. This motion is dismissed.
i) On May 15, 2014, the Court of Appeal granted Ms. Kim’s request for an extension of time to file her materials for a review of the March 26, 2014, order of Associate Chief Justice Hoy. Justice Cronk stated that it appeared that Ms. Kim had the intention within the required time to seek a review of the order but mistakenly believed that her right of review was to the Supreme Court of Canada. Justice Cronk continued, “She has confirmed that she is in a position to file her motion or review materials within 10 days. No significant prejudice to the respondent will arise from a brief extension of time.” Justice Cronk therefore granted the motion and ordered that Ms. Kim serve and file her motion or review and all related material by May 26, 2014, failing which her motion would be dismissed for delay. She reserved the costs of the motion to the panel hearing the review motion.
j) On June 5, 2014, Justice van Rensburg dismissed Ms. Kim’s motion for a further extension of time to move before a panel of the Court of Appeal to review the Order of Associate Chief Justice Hoy. Noting that Justice Cronk had granted an extension to May 26, 2014 that required Ms. Kim to serve and file her motion for review and all related material by that date, failing which her motion would be dismissed for delay, Justice van Rensburg wrote:
The endorsement could not have been more clear and the materials filed today, together with Ms. Kim’s submissions, aided by Amicus, Ms. Hunter, do not persuade me otherwise. Considering all of the circumstances of the litigation and Mr. Peredery’s arguments as to why the extension should not be granted, the ends of justice would not be served by extending the time for review by a panel of this court. There are no apparent grounds in any event to conclude that there was any error in the order of A.C.J.O. Hoy. Her order is accordingly final and Ms. Kim’s motion today as well as the motion to review the order are dismissed.
Justice van Rensburg ordered Ms. Kim to pay the costs of the attendance before her and before Justice Cronk in the amount of $1,500.
k) On October 10, 2014, the Court of Appeal (Strathy, C.J.O., Rouleau and Hourigan JJ.A.) dismissed Ms. Kim’s appeal from Justice van Rensburg’s dismissal of Ms. Kim’s motion for a further extension of time to appeal from Associate Chief Justice Hoy’s order dated March 26, 2015.
l) On March 5, 2015, the Supreme Court of Canada (Rothstein, Cromwell and Moldaver JJ) dismissed Ms. Kim’s application for leave to appeal from the judgment of the Court of Appeal dated October 10, 2014.
m) On July 28, 2015, Ms. Kim brought a motion to change Justice Clay’s order dated October 15, 2013, that granted custody to Mr. Peredery and supervised access to Ms. Kim. Her motion was received by Justice Clay in Chambers. He wrote:
The [Applicant/Mother’s] affidavit does not state if any costs have been paid. It sets out no reason why this court should grant leave and makes no reference at all to the costs orders. The affidavit simply attaches a proposed motion to change in which the [Applicant/Mother] wishes to seek joint custody. Motion denied.
n) On September 1, 2015, a further motion by Ms. Kim came before Justice Clay in Chambers. Dismissing the motion, Justice Clay wrote:
The last motion attempts to address the issue of the failure to pay outstanding costs orders. The [Applicant/Mother] states that she has very modest income and significant debt. This may well be the case although the financial information provided does not include tax records, i.e. Notices of Assessment.
If there is a genuine issue concerning the best interests of children, an inability to pay outstanding costs should not be a complete barrier to accessing the courts. However in this matter the final order of October 15/13, which was upheld on appeal, provides that the [Applicant/Mother] shall have access to the 2 children supervised by her father or agreed upon 3rd party. The [Applicant/Mother] now asks for a removal of “conditions” which I assume means supervision and seeks joint custody. Her draft motion to change provides no information as to any material change in circumstances that might have occurred since the final order was made.
There is no genuine issue raised in this matter. Motion dismissed.
o) On September 22, 2015, Justice Clay received the further motion in Chambers which, as noted above, indicated that the motion was basically the same as the one he had dismissed on September 1, 2015. The only difference, he noted, was that the Applicant/Mother had set out the amount of her debt. He continued:
This motion will also be dismissed but not because the Applicant/Mother has failed to pay costs. The Applicant/Mother wants to bring a Motion to Change to seek joint custody but she has not shown that there has been any material change in circumstances since the first order. The motion is dismissed.
Justice Clay further wrote:
The Applicant Mother may not bring any 14B motions without notice. If the Applicant Mother seeks to bring another motion for leave to file a Motion to Change without paying costs she must:
(a) personally serve the Notice of Motion on the Respondent Father (she cannot serve herself but another adult person must do it); (b) file a Financial Statement attaching her last 3 years Notices of Assessment and Income Tax etc.; (c) attach a draft Motion to Change which specifically sets out the material change in circumstances that she states has occurred.
p) On October 2, 2015, the Supreme Court of Canada returned Ms. Kim’s application for leave to appeal dated September 8, 2015, in respect of the September 1, 2015, order of Justice Clay. The Registrar noted that the Supreme Court has jurisdiction under section 40 of the Supreme Court Act to hear appeals from any final or other judgment of the highest court of final resort in a province, or a judge thereof, and that as it appeared that she did not have a final decision of the Ontario Court of Appeal which could be appealed to the Supreme Court of Canada, her matter might be premature.
q) There followed the order dated October 16, 2015, which gave rise to the present motion.
54Mr. Peredery has additionally filed material in connection with other legal proceedings in which Ms. Kim has been involved, including the following:
a) A complaint dated April 4, 2011, to the Law Society of Upper Canada concerning the conduct of a lawyer acquaintance of hers (not a lawyer who had provided services to her), accompanied by 1,000 pages of supporting material. The Law Society, after requiring Ms. Kim to reduce her submission to 50 pages, sent her a letter dismissing her complaint, which was followed by further correspondence from Ms. Kim pursuing the matter until she had exhausted her rights of appeal within the Law Society’s regulatory framework. b) A written complaint by Ms. Kim to the Office of the Privacy Commissioner of Canada on March 19, 2012, against Bell Canada, which the Privacy Commissioner concluded it had no jurisdiction to investigate. c) A finding of guilt against her by Justice Maund, of the Ontario Court of Justice, on February 1, 2013, of assaulting Mr. Peredery.
55Mr. Peredery additionally submitted extensive correspondence disclosing mass mailings by Ms. Kim complaining of the treatment she had received from others. Some of this correspondence gave rise to an email response from her sister, Susan Kim, dated October 12, 2011, of which she had sent a copy to Mr. Peredery, with the subject line, “Stop sending these emails.” Susan Kim wrote, in part:
I am being very blunt in this email. I included mom, dad, and Andy on this email because we are the people that are closest to you and I think that you should ask them if they agree with me about how I feel. It’s not a conspiracy, and we are not ganging up on you. We are trying to help you.
You recent email was 12 pages of crap. STOP sending these mass emails out immediately. Seriously, I really mean it. No one wants to hear it anymore. Perhaps no one else will be honest with you about the fact that they don’t want to hear it anymore, because it’s much easier to simply ignore you rather than confront you. I would not be surprised if many people may have simply started blocking you as a sender.
I am your sister, and I am confronting you. You are in denial about your condition. You have paranoid delusions of persecution. You had a nervous breakdown in 2007, and you have not been able to fully recover for the last 4 years. There were times that you were better temporarily, but under stress, you slip back. Even now, when the stress is less, you are not mentally strong. You are concerned about your privacy and safety in an unhealthy and delusional way. You perceive threats that are nonexistent. You make connections in your mind to tie together all of your perceived threats but none of it makes any sense.
56Finally, Mr. Peredery submitted a clinical note dated April 12, 2012, from Dr. June Kingston, a doctor at Summerville Family Health Team, whom Mr. Peredery had apparently consulted in connection with his wife’s mental condition. Dr. Kingston advised him regarding his concern for Ms. Kim, and the option available to him of attending before a Justice of the Peace if he could demonstrate that Ms. Kim was exposing herself or others to potential harm and does not appreciate the risk and benefits of treatment.
57While the court does not have evidence of Ms. Kim’s mental condition, the extent of the proceedings she has initiated in this court and in the Ontario Court of Justice reflects a degree of perseveration that amounts to an abuse of process. Her repeated motions, without merit, and without complying with previous orders for costs, impose such a burden on Mr. Peredery as to entitle him to protection from the court.
58Section 140 of the Courts of Justice Act provides:
140 (1) 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. (3) Where an application for leave is made under subsection (3), (a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding; (b) the person making the application for leave may seek the recision of the order made under subsection (1) but may not seek any other relief on the application; (c) the court may rescind the order made under subsection (1); (d) the Attorney General is entitled to be heard on the application; and (e) no appeal lies from a refusal to grant relief to the applicant. (5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.
59The Court of Appeal has interpreted the words “Where a judge of the Superior Court of Justice is satisfied, on application,” as used in section 140(1), to mean that an order under that section requires an application, and cannot be granted on an interlocutory motion within a proceeding. Lang J.A., in dissenting reasons in Kallaba v. Bylykbashi, in 2006, concluded that because a vexatious litigant order is an extraordinary remedy that alters a person’s right to access the courts, it should be made only by way of application. Justice Lang found that an application provides the procedure best suited to the determination of whether a litigant is vexatious, because of the due process protections which that procedure accords to the person targeted, such as personal service, adjudication by a judge, a directed trial of an issue if necessary, and the right of appeal without the need for leave.
60The Court of Appeal adopted Justice Lang’s analysis in Lukezic v. Royal Bank of Canada, in 2012. Goudge J.A., speaking for the court, stated:
In summary, Lang J.A. emphasized that the Courts of Justice Act is designed to advance access to justice which is, as she says, a fundamental pillar of the rule of law. Section 140(1) runs contrary to that important goal by denying access to individuals with carefully specified characteristics. In that sense, it is an exception to the thrust of the legislation and therefore should be construed strictly.
61This conclusion does not, however, leave the court without the means to prevent abuse of its process. Rule 14 of the Family Law Rules, governing motions for temporary orders, provides, in part:
14 (21) 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.
62Rule 14(21) is narrower in scope than s. 140 of the Courts of Justice Act. It restricts only motions, not any proceeding, including appeals. The Divisional Court, in Cudini v. 1704405 Ontario Inc., in 2012, in the context of an action governed by the Rules of Civil Procedure, distinguished the narrower scope of orders made based on an abuse of process from the wider scope of orders under s. 140(1) of the Courts of Justice Act. Justice van Rensburg stated:
Section 140(5) of the Courts of Justice Act preserves the authority of the court to “stay or dismiss a proceeding as an abuse of process or on any other ground”. Under rule 37.17 of the Rules of Civil Procedure, a judge or master may prohibit a party from making further motions in a proceeding without leave, and under rule 21.01(d) a defendant may move before a judge to have an action stayed or dismissed on the grounds that the action is an abuse of the process of the court. [Emphasis added]
63Justice van Rensburg, in Cudini, delineated a type of proceeding that would justify an order regulating abuse of process. She stated:
The proceedings were clearly an attempt to re-litigate the constituent issues or material facts already embraced in a decision that had already been determined. Such conduct is an abuse of process, and will justify an order dismissing a proceeding: Toronto (City) v. Canadian Union of Public Employees, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 37, per Arbour J. [Emphasis added]
64In the present case, Ms. Kim seeks to re-litigate the issue of custody which Justice Clay determined in 2013, based on the same facts that he considered at that time. In her motion to change on October 16, 2015, she did not advance evidence of a material change in circumstances. She simply sought a different outcome of the custody issue, based on evidence of the same facts that the court had considered previously.
65Were the court to entertain an application to have Ms. Kim declared a vexatious litigant, the evidence the court has heard in Mr. Peredery’s motion might well justify such an order being made. The Court of Appeal in Canada (Attorney General) v. Mennes, in 2014, approved the factors that the High Court enumerated in Re Lang Michener and Fabian, in 1987, when considering an application under s. 140(1) of the Courts of Justice Act. In Lang Michener and Fabian, Justice Henry reviewed the jurisprudence and summarized the principles relating to vexatious proceedings 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 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 the proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause; (f) The failure of the person instituting the proceeding 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.
66In the present case, the history of the proceeding set out above discloses that Ms. Kim has brought numerous motions to determine an issue which the Ontario Court of Justice already determined. No reasonable person could expect her motions to change, brought in the absence of any material change in circumstances, to succeed. Yet, Ms. Kim repeatedly appealed from the dismissal of her motions, failing to pay the costs of her unsuccessful proceedings.
67Justice André, in his decision dated January 10, 2015, ordered that Ms. Kim could not bring any further proceedings to change Justice Clay’s order or any of the Superior Court orders of Justice Price, Justice Seppi and his own order without paying the outstanding costs orders of $5,300 unless she obtained the leave of the court to do so. She did not pay those costs, but continued to bring proceedings, leading to a further order on June 5, 2014, by Justice van Rensburg, who ordered Ms. Kim to pay the costs of the hearing before Justice Cronk, on May 15, 2015, and before herself on June 5, 2014, in the amount of $1,500. Ms. Kim’s persistent motions and appeals, in violation of multiple orders of the court, and justifying her failure to pay outstanding costs orders now amounting to $6,800, on the ground of her impecuniosity, leaves Mr. Peredery having incurred substantial costs, with no effective remedy. Ms. Kim’s conduct amounts to a clear abuse of the court’s process.
68For the foregoing reasons, it is ordered that:
Ms. Kim shall, by May 30, 2016: (a) Pay to Andy Peredery the costs previously ordered by this court and the Ontario Court of Justice, and currently outstanding, in the amount of $6,800; or (b) Serve and file an up-to-date financial statement in form 13.1, evidencing her impecuniosity, and her inability to pay those costs; or (c) A medical report from a qualified physician as to whether she is under a disability that renders her incapable of conducting the present proceeding.
Ms. Kim shall not make any other motions in the present proceeding, or in court file number 220-13 in the Ontario Court of Justice, without the permission of the court in which she proposes to make such a motion. In any such motion for leave, she shall include these reasons.
Ms. Kim shall, by May 30, 2016, pay to Mr. Peredery the costs of the present motions, fixed in the amount of $750 each, for a total $1,500.
Justice David Price
Released: April 13, 2016