Court File and Parties
COURT FILE NO.: FS3160-12 DATE: 2016/08/08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sylvia Hawkins v. Anthony Schlosser
BEFORE: Ellies J.
COUNSEL: Shawn Hamilton, for the Applicant Respondent, Self-Represented
HEARD: July 29, 2016
Endorsement
[1] There are two motions before me. The first is a motion by Ms. Hawkins in which she seeks leave to bring a motion to change the order of R. D. Gordon J. dated May 7, 2012. Leave is required because on April 13, 2013, I declared Ms. Hawkins to be a vexatious litigant pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (see 2013 ONSC 2120). I prohibited her from commencing any proceeding in any court relating to custody of or access to Selena Antonia Schlosser without leave.
[2] Ms. Hawkins seeks to adjourn her motion for several reasons. For one, pursuant to s. 140 of the Courts of Justice Act, leave should be sought in an application and not in a motion. Secondly, the application should be served upon the Attorney General, which has not occurred. Lastly, Ms. Hawkins seeks an adjournment in order to respond, if necessary, to the affidavit of Mr. Schlosser sworn on July 25, 2016, in response to Ms. Hawkins’ application.
[3] Mr. Schlosser opposes Ms. Hawkins’ request to adjourn the leave motion. He submits that this is just one more meritless attempt to overturn Gordon J.’s order, by virtue of which Mr. Schlosser was awarded custody of Selena. Ms. Schlosser also points out that Ms. Hawkins is in contempt of that order for failing to provide copies of her income tax returns for the past four years.
[4] The second motion before me is a motion by Mr. Schlosser in which he seeks an order granting his wife or family members permission to pick up Selena following access with Ms. Hawkins, an order that Ms. Hawkins pay child support, and an order cancelling the access granted by Gordon J. on Mother’s Day and Father’s Day, among other things.
Ms. Hawkins’ motion for leave
[5] I agree with Mr. Schlosser’s submission regarding Ms. Hawkins’ motion for leave. I see nothing in the evidence relating to that motion that makes it any different than the many previous attempts by Ms. Hawkins to re-litigate Gordon J.’s decision to award custody of Selena to Mr. Schlosser.
[6] By my count, this is at least the sixth attempt by Ms. Hawkins to vary Gordon J.’s order and to obtain custody of Selena since that order was made. The previous attempts were outlined in my reasons for declaring Ms. Hawkins to be a vexatious litigant. The previous attempts include:
(a) A motion to change and an emergency motion without notice for temporary custody brought in North Bay in June, 2012;
(b) An appeal to the Court of Appeal for Ontario, which was abandoned in favour of the motion to change referred to above;
(c) A motion to change and a motion for temporary custody brought in Parry Sound in September, 2012;
(d) A second emergency motion to change brought in Parry Sound in October, 2012 when the motion referred to immediately above had to be adjourned to a date with which Ms. Hawkins was not content;
(e) A motion brought in Parry Sound before Koke J. (see 2014 ONSC 2538) in April, 2014, seeking leave to bring a motion to change; and
(f) An emergency motion without notice brought in North Bay in December, 2014 (see my reasons in 2014 ONSC 7290).
[7] In addition to these direct attacks on Gordon J.’s order, Ms. Hawkins has brought a number of contempt motions against Mr. Schlosser.
[8] All of these proceedings were based substantially, if not entirely, on Mr. Schlosser’s alleged failures or refusals to facilitate access, just as the present motion is based. In fact, much of the evidence relied upon in support of the motion before me is the same evidence that Ms. Hawkins relied upon in her previous attacks, or was available for her to rely on. None of those previous attacks were successful. In each case, whether the motion was decided by me or by another judge, Ms. Hawkins’ allegations of misconduct have been rejected or the court has concluded that Mr. Schlosser’s actions were the result of misconduct on the part of Ms. Hawkins – misconduct that is not in Selena’s best interests.
[9] The events alleged to have occurred after Ms. Hawkins brought the emergency motion in December, 2014, consist, for the most part, of allegations that Mr. Schlosser has denied her telephone access to Selena. She also alleges that she has been refused access to Selena’s medical information. Mr. Schlosser refutes all of these allegations.
[10] Worth repeating here is one aspect of the evidence upon which I based my earlier decision to declare Ms. Hawkins a vexatious litigant. At para. 18 of my reasons of April 11, 2013, I set out the following excerpt from Ms. Hawkins’ affidavit of August 30, 2012 and made the following observation:
I have abandoned my appeal solely on the basis, (sic) that I can not afford $20 – 30,000 that would take from my family. I have (believed) this was wrong from the start. I have to question why a capable mother of 6 children would only have one child removed from the (equation). Why was I stripped of my rights as a parent to make decisions for my child? Why are my children made to suffer the stages of grief, (sadness) and anxiety whereas, (sic) Selena Schlosser at 4 years old has been recommended to attend an anxiety group by Valarie Bertier at Hands in Northbay (sic), and Dr. Graham recommending the court pay for a psychological assessment for the family? My family is suffering.
This excerpt demonstrates quite clearly, in my view, that this motion to change is really just an appeal in disguise.
[11] I am not persuaded that this latest attack is any different. I find it rather telling that, rather than relying on these latest allegations of denial of telephone access in support of a motion for contempt, Ms. Hawkins has chosen once more to rely on them in support of another request for custody.
[12] For these reasons, Ms. Hawkins’ request for an adjournment is denied, as is her request for leave to commence the motion to change.
Mr. Schlosser’s motion to change
[13] I turn now to Mr. Schlosser’s motion.
[14] Mr. Schlosser’s requests for child support and to cancel Father’s Day and Mother’s Day access are, in reality, requests to change the order of Gordon J. As such, the motion is not in the proper form. A motion to change must be brought under Rule 15 of the Family Law Rules, and not under Rule 14. A motion to change is a separate proceeding itself, and not a motion within a proceeding. Mr. Schlosser’s mistake is understandable, given the confusing use of the word “motion” in the Family Law Rules to describe both types of proceedings.
[15] During argument, Mr. Schlosser indicated that he was content to withdraw the requests he makes in his motion, in order not to have to return to court yet again in matters relating to Selena. For that reason, Mr. Schlosser’s motion will be dismissed, with one exception. In my view, Mr. Schlosser’s request regarding clarification of the identity of the person or persons who can pick Selena up following access is not properly characterized as a motion to change. There is nothing in Gordon J.’s order requiring Selena to be picked up only by one of her parents. Therefore, as a motion under Rule 14, it is properly before the court. For that reason, I intend to rule upon it.
[16] Gordon J. ordered only that Mr. Schlosser would be responsible for dropping Selena off at Ms. Hawkins’ residence at the commencement of access periods and that Ms. Hawkins would be responsible for dropping Selena off following those access visits. Ms. Hawkins is well aware of the terms of Gordon J.’s order. In the past, she has proposed that her partner and her father transport Selena. She even brought a contempt motion when Mr. Schlosser refused to put Selena alone in a taxi cab that Ms. Hawkins sent to retrieve Selena on one occasion.
[17] On April 22, 2014, Koke J. varied Gordon J.’s order as a result of Ms. Hawkins’ failure to return Selena to Mr. Schlosser following an access visit. Koke J. ordered that Ms. Hawkins would be responsible for picking Selena up at Mr. Schlosser’s residence at the commencement of her access visits and that Mr. Schlosser would be responsible for picking Selena up at the end of those visits. Koke J. did not indicate that Mr. Schlosser was the only individual who could retrieve Selena. There was then, and there is now, no reason to require such a term.
[18] Therefore, in order to clarify matters so as to ensure that there is no possibility for misunderstanding or misuse, an order shall issue that, as per the order of Koke J. dated April 22, 2014, Mr. Schlosser is free to send his wife, Karen Schiavo, or any other family member Mr. Schlosser deems fit, to retrieve Selena following access visits with Ms. Hawkins.
Costs
[19] Mr. Schlosser was successful in resisting Ms. Hawkins’ motion for leave and in his request for clarification of the terms of the orders in question. During oral argument, I requested submissions on the matter of costs. Mr. Schlosser seeks costs in the total amount of $1,000. These costs are based upon the two days he was required to take off work in order to deal with Ms. Hawkins’ motion and prepare his own motion, including disbursements of approximately $200. I believe this amount is fair and reasonable and I order that Ms. Hawkins must pay costs in that amount, inclusive of HST.
Order
[20] For the foregoing reasons, an order shall issue that:
(1) Ms. Hawkins’ motion at tab 3 of the Continuing Record for leave to move to change the order of Gordon J. dated May 7, 2012, is dismissed.
(2) Ms. Hawkins’ motion at tab 1 of the Continuing Record to change the aforementioned order is dismissed.
(3) Pursuant to the order of Koke J. dated April 22, 2014, Mr. Schlosser is at liberty to send his wife, Karen Schiavo, or any other family member Mr. Schlosser deems fit, to retrieve Selena following access visits with Ms. Hawkins.
(4) The balance of Mr. Schlosser’s motion at tab 5 of the Continuing Record is dismissed.
(5) Ms. Hawkins shall pay costs to Mr. Schlosser in connection with the aforementioned motions in the amount of $1,000.00, including HST.