COURT FILE NO.: FS-10-360434-0004 DATE: 20170515

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LARISSA LOUISE EASSON, Applicant A N D DR. FRIEDRICH RUDOLF BLASE, Respondent

BEFORE: MESBUR J.

COUNSEL: Derek Ground, for the applicant, for this motion only The respondent in person

HEARD: April 20, 2017

E N D O R S E M E N T

Introduction:

[1] The respondent father has launched a motion to change. In it, he moves, for the second time in 5 years, to change the final order of Klowak J of May 14, 2012. That order was made on consent, and set out a comprehensive scheme for parenting the parties’ two sons, and for child support, including s.7 expenses. On this motion before me, the applicant mother moves to strike the father’s current motion to change on the basis he is in significant breach of prior orders, particularly costs orders. Alternatively, and additionally, she moves to strike on the basis this current motion to change is frivolous and vexatious and an abuse of the court’s process. She seeks summary judgment dismissing the motion to change as a result. In the further alternative, the mother seeks to have the father declared a vexatious litigant. In each of these instances she asks that the father be prohibited from bringing further motions without first obtaining leave from the court. Last, the mother asks that the father be required to provide security for costs as a precondition to proceeding further in this court.

[2] Although the father purported to have a cross-motion heard at the same time as the mother’s motion, the issues in it had neither been conferenced, nor had any cross-motion been properly scheduled. Accordingly, I declined to hear it, and dealt only with the mother’s motion to strike.

[3] Although the mother also framed her motion as a motion for summary judgment, that issue (in the sense contemplated by Rule 16 of the Family Law Rules) was not fully argued on the evidence. Instead, the mother’s argument focused on the court’s ability to strike, stay or dismiss a claim for failure to obey an order or orders, and to strike documents that are inflammatory, a waste of time, a nuisance or an abuse of the court’s process. Rules 1(8), 1(8.1) and 1(8.2) of the Family Law Rules.

[4] In order to understand the mother’s motion to strike, it is critical to put the father’s motion to change in context, and to outline in some detail the tortured history of this case.

The history of the parties and their litigation:

[5] The parties were married in the fall of 2003. Their first child Nikolas was born about a month after the parties married. The parties “officially” separated on May 15, 2009. Their second son Julian was born two months later, on July 20, 2009.

[6] The parties have been in virtually constant conflict since their separation, and in constant litigation about their children since June of 2010 when the mother commenced an application to secure child support. They were headed toward a lengthy trial almost three years to the day from their separation. They were able to avoid a trial by consenting to a comprehensive and detailed parenting regime. That regime was incorporated into a consent final order of Klowak J, dated May 14, 2012.

[7] The final order deals with decision making and consultation. It also includes provisions for mediation with Dr. Irwin Butkowsky. If the parents cannot come to an agreement, the mother has final decision making authority.

[8] In May of 2014, or two years after the final order, the father commenced a motion to change. His motion resulted in a 12-day trial before McWatt J over April, June and July 2015. According to the trial decision, father was seeking the following: Paragraph 4 of Reasons for Judgment in Easson v Blase, 2015 ONSC 5170

a) Increased time sharing, regarding the two children of the marriage, such that the children reside with each parent on an alternate week basis with exchanges to take place on Monday morning at school; b) The parent residing with the children at the relevant time to make daily decisions affecting their welfare; c) Summer vacations to be divided equally with the father to have the first half and the mother the 2nd half or, alternatively, for the summer to be divided into quarters with one parent to have the 1st and 3rd quarter and the other the 2nd and 4th quarter; d) The residential and vacation schedule to take precedence over any civic and/or statutory holidays; e) Parallel parenting such that the order provide the parties have joint custody with decision making to be divided between them with one parent to have final decision making regarding nanny/child care, extra-curricular activities and religion; and, the other to have final decision making regarding education and health; or, in the further alternative, that neither parent to have final decision making regarding the children’s schooling and the issue of schools to be determined by agreement of the parties or by the Court, or, if the parties agree, by Dr. Butkowsky; f) It is also possible that decision making could be divided in some other manner – what is important is that neither party have absolute control; g) An order that Julian, who is to enter grade 1 in September, 2015, change schools from Ecole Charles Sauriol to Ecole Pierre Elliot Trudeau; and h) Costs, including costs of expediting transcripts.

[9] At the trial the father did not argue (f) above, nor particularize what he meant by it. As for (e), his position at trial was that he should be the decision maker regarding education and health. On the second day of the trial, the trial judge asked the mother if she was prepared to provide more parenting time for the father. The mother was agreeable, and the parties consented to an order to that effect. As a result of their consent, the children now reside with the father on alternate weeks from Wednesday morning from the start of school through Monday mornings until the start of the school day. If Monday is a holiday, then the boys remain with the father until the Tuesday until school begins.

[10] That consent change was the only change made to the final order. On September 18, 2015 McWatt J released her reasons for judgment. She dismissed the father’s motion to change in its entirety. In doing so, she made significant findings of fact. At paragraph 86, McWatt J found the children have flourished in their mother’s stable and continuous care. At paragraph 87 she determined the father would use the new decision-making power he had asked for to harm the children’s relationship with their mother.

[11] At paragraph 89 the trial judge concluded:

I cannot and will not imagine what material change would justify changing the Final Order. The best interests of these children are already being served. The parallel parenting regime suggested by the father would serve only to undermine the children’s stability in the context of their parents’ unstable relationship.

[12] After receiving costs submissions following the trial, McWatt J ordered the father to pay the mother’s costs, fixed at $78,675, all inclusive. The costs order is dated November 20, 2015. In her costs endorsement, the trial judge described the motion to change before her as “really an attempt to appeal” the original consent order.

[13] Father did not pay the costs. Instead, he immediately launched an appeal of the judgment, and sought leave to appeal the costs decision as well. The Court of Appeal described the appeal as arising “Out of a high-conflict dispute between parents regarding the residential schedule and parenting of their two children, now 12 and 7 years old.” Easson v. Blase, 2016 ONCA 604. The court went on to quote the trial judge’s comment that the father “holds unbridled hostility towards” the mother and the children have flourished in the mother’s stable and continuous care. The Court of Appeal also quoted paragraph 89 of the trial judge’s reasons, which I have set out above.

[14] The Court of Appeal dismissed the father’s appeal on July 29, 2016. They denied the mother’s motion to admit fresh evidence on the appeal. On September 29, 2016 the Court of Appeal denied costs of the appeal to either party.

[15] The very next day, father executed all the necessary documents for a new motion to change. Father’s motion to change, change information form and financial statement are all dated September 30, 2016. The motion to change itself was issued on October 7, 2017. The motion to change, Change information form, affidavit, and conference notice were all served on October 8.

[16] In his current change information form father seeks the following:

a) The children to spend alternate weeks with each parent; b) Summer to be divided in half, with the children spending the first half with father, and the second half with mother; c) Terminating his child support obligation effective July 31, 2016; d) Amending paragraphs 47, 48, 50 and 55 of the final consent order so that: i) The shared expense for the nanny is reduced to a total of $650/month as of September 2013 [5] until and including January 2016; ii) As of February 2015 [6] and for as long in the future as child care is provided through Dianne Baldwin there shall be no sharing of extraordinary expenses for the nanny; iii) Mother shall reimburse Father for all costs arising from any enforcement measures taken by the Family Responsibility Office since September 2013 [7] ; iv) The parents shall agree on the reconciliation of Section 7 expenses for the years 2013, 2014 [8] and 2015 within 6 weeks after the date of the decision v) Since the parents have almost equal taxable income in 2015 (ca. $175,000), effective August 1, 2016 they shall not pay each other child support and pay 50% each of the extraordinary expenses e) To change the provisions for decision making, nanny, Section 7 expenses, passports and travels consent as follows: i) Paragraph 3 of the Order of Klowak J, dated May 14, 2012: The parents shall jointly appoint a successor to Dr. Butkowsky. If mediation does not produce a resolution, mother shall have final – decision making authority over health care and extra-curricular activities. ii) Paragraph 39 of the Order of Klowak J, dated May 14, 2012: the mother shall make the Canadian passports of both children as well as a travel consent available to the father for any travel at least 7 days prior to date of travel. The mother shall cooperate in the issuance of new German passports for both children and recognizes that Julian’s last name according to German law is “Blase” only.

[17] Mother delivered her response to the motion to change on November 10, 2016. In it, she asks for the motion to change to be dismissed in its entirety and to strike or dismiss the motion to change because of the father’s failure to comply with numerous orders of this court and the Court of Appeal. She also asks the court to set out a schedule for procedural steps to be taken and the date for a motion to resolve the financial review regarding child support and s.7 expenses as provided in section 56 of the Klowak J final order.

[18] The mother’s response points out that at the date of her response, namely November 9, 2016 and certainly when the father commenced this current motion to change, he was in breach of the following orders:

a) The costs order of McWatt J dated November 20, 2015, in the amount of $78,675, plus interest; b) The Order of Hood J of May 26, 2016 awarding costs to the mother of $800; c) The order of MacFarland JA of July 13, 2016 awarding costs to the mother of $1,000; d) The order of Hood J of August 16, 2016 awarding costs to the mother of $1,500; e) The order of Klowak J dated May 14, 2012 requiring that father shall continue to pay child support until the order has been varied by further order. No such further order has been issued and the father’s arrears amount to $7,600.

[19] On November 21, 2016 mother served this motion to strike. Her affidavit in support of the motion is sworn November 20, 2016. The motion was made returnable February 7, 2017. The father therefore had significant notice of the motion to strike. He did not respond to it until January 30, 2017. I have no idea why he would have taken over two months to do so. His response, however, bears comment.

[20] Father’s affidavit in response to this motion to change comprises 561 paragraphs (not counting the 9 pages of what he describes as “relief sought”), over 104 pages. Appended to the 104-page affidavit are 145 exhibits. The affidavit and its exhibits fill four complete volumes of the continuing record, namely volumes 2, 3, 4 and 5.

[21] Needless to say, the mother was in no position to reply to this “dump” of material before the long-scheduled motion date. Instead of the motion, the court convened a case conference before Frank J on February 10, 2017. On that date, Frank J rescheduled the motion to be heard as a long motion on April 20, 2017. She set a timetable for delivery of facta as well as time limits for argument. She also required the father to comply with the order of the DRO, and provide banking and credit card statements within two weeks. Father was also ordered to provide particulars of the disposition of the proceeds of the Strachan Ave. property within 4 weeks. Father did neither until the week before the motion to strike was argued before me.

[22] Frank J’s order also went on to provide, on consent:

a) The parties shall retain a parenting co-ordinator to replace Dr. Butkowsky. The applicant [sic] has proposed two co-ordinators. The applicant shall respond to that proposal within 10 days. If she does not approve either, she will submit a 3 rd name and the parties will ask Dr. Butkowsky to choose the co-ordinator from amongst those 3 names. The parties will approach Dr. Butkowsky by email within 15 days; b) The financial issues, i.e. the amount of support and s.7s to be paid by the respondent will be mediated by the parenting co-ordinator.

[23] Frank J concluded her endorsement as follows:

Mr. Blase has been reminded of his obligation to comply with the cost order of McWatt J dated November 20, 2015. He has paid nothing towards that order. He ought not to be able to resort to the courts in the manner in which he has while at the same time disregarding its orders.

[24] On the return of the motion to strike, on April 20, 2017, the father had finally and in a piecemeal fashion complied with his disclosure obligations, but not until the week before the motion. The father also finally paid the costs orders apart from the costs of the trial. Notwithstanding Frank J’s endorsement two months earlier, father was still in default of the trial costs order of over $78,000 when mother’s counsel argued the motion to strike.

[25] When father began his argument in response to the motion to strike, I asked him to explain his default. He suddenly reached into his pocket and pulled out what he described as a certified cheque for the “full” amount of the trial costs of $78,675, but without accrued interest. With somewhat of a flourish and a smirk he passed the cheque across the courtroom to mother’s counsel. I have no idea whether he would have delivered the cheque had I not raised the issue. Father had no reasonable explanation for why he had failed to deliver the cheque before the motion was argued, or why he had failed to include accrued interest. The judgment bears interest at 2% from September 18, 2015. The judgment directed the costs be paid within 6 months. Obviously, they were not. As I calculate it, accrued interest to April 20, 2016 is $2,353.61. That amount is still owing and still remains unpaid.

[26] It is against this historical background that I now turn to the mother’s motion to strike.

Discussion:

[27] The mother describes the father’s current motion to change, quite accurately, as seeking “to vary the Order of Justice Klowak dated May 14, 2012 (“Final Order”) to increase the amount of time the children are resident with him, to provide him with increased decision-making authority, and to terminate retrospectively his financial obligations regarding childcare costs.” [Mother’s Revised Factum, paragraph 2]

[28] The mother goes on to note that “the father also seeks changes to his financial obligations (including a claim for support against the mother).” [Ibid, paragraph 4] She asks the court to strike this request for relief since “the father has yet to make full financial disclosure and the financial review contemplated by the Final Order has not been completed. The father also asks for scheduling process changes. This request should be struck as the parties are in the process of appointing a new parenting coordinator to assist with scheduling.” [Ibid.]

[29] As the mother points out, the Final Order was issued on consent, and governs residential matters as well as child support, including s.7 expenses, including child care/nanny costs. The highlights of the Final Order are the following:

a) The mother has final decision-making authority over important decisions (after consulting and conferring and if needed, attempted mediation, with the father); b) The children reside primarily with the mother. There was a process for gradually extending the time with father pursuant to mediation with Doctor Butkowsky. He, however, was not mandated to mediate or consider a new parenting regime. A new parenting regime could only be determined by a court if there were a material change in circumstances. c) Father is to pay monthly child support of $1,992 plus nanny costs of $1,338.74; d) Financial arrangements were to be reviewed in July 2016. Father, however, was to continue to pay the child support and nanny costs above until there is a further agreement or court order, and subject to adjustment as needed after August 1, 2016;

[30] The mother advances a number of arguments to support her ultimate position that the father’s current motion to change should be struck, stayed or dismissed.

[31] First, mother says the motion to change should be struck on the basis of father’s breach of prior orders. It is noteworthy that father was in breach of numerous orders when he began his current motion to change. Although he finally paid the face amount of the costs order from the first motion to change, the amount had been outstanding nearly a year and a half. Father has still failed to pay the outstanding interest owing on the trial costs.

[32] Second, mother says the motion to change should be struck as being an abuse of the court’s process, a waste of time, or frivolous and vexatious on its face.

[33] Third, mother argues not only is this proceeding vexatious on its face, but father himself should be declared a vexatious litigant, the proceeding struck, and he should be prohibited from commencing any further proceedings without first obtaining leave of the court.

[34] Last, mother takes the position even if the motion to change is not struck, father should be required to post significant security for costs as a precondition to proceeding further. She suggests the figure of $70,000 would be appropriate, given the length of the prior trial before McWatt J, and the ultimate costs disposition against the father as a result.

[35] I will address each of the mother’s arguments in turn.

Breach of prior orders

[36] Rule 1(8) of the Family Law Rules provides:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

a) An order for costs; b) An order dismissing a claim; c) An order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; d) An order that all or part of a document that was required to be provided but was not, may not be used in the case; e) If the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; f) An order postponing the trial or any other step in the case; and g) On motion, a contempt order.

[37] Striking a claim is a serious remedy. It should only be used in the clearest of cases. Here, when father began the current motion to change he was in breach of all the outstanding costs orders against him, both from this court and the Court of Appeal. He was in breach of his child support obligations when he stopped making regular child support payments in March of 2015. Father came into compliance only when the FRO began enforcement, and he had to discharge a lien in their favour when he sold his home. At that time, he owed more than $30,000 in unpaid child support. Mother also points out the father has never complied with his annual financial disclosure obligations under the original order.

[38] Father has complied with court ordered obligations slowly, grudgingly and only when compelled to do so. As I have said, when argument began on this very motion, father still had not paid the costs order from the previous motion to change. The costs had been outstanding since November of 2015. Even when he magically produced a certified cheque to pay the costs, the cheque did not include accrued interest.

[39] Thus, the father remains in breach of his obligations under a court order. He should not be permitted to proceed further until all his obligations have been paid in full.

[40] Had the father not paid at least the face amount of the costs, albeit as late in the day as he could, I would have had little hesitation in striking or staying his motion to change on that basis. Since the interest owing is just under $2,500, and all other costs orders have finally been paid, I am not prepared to strike the motion to change, but will stay it pending father’s payment of the interest. He shall pay the outstanding interest of $2,353.61 within 30 days. During this 30-day period, father is prohibited from taking any further steps in the motion to change, or bringing any motions or proceedings at all. If father does not pay the interest within 30 days, then this motion to change shall be permanently stayed, and father shall be prohibited from taking any further steps in the motion to change, or bring any motions of any nature or kind without first obtaining leave of this court to do so.

Abuse of process/vexatious proceedings

[41] Mother also argues father’s motion to change can and should be dismissed as an abuse of the court’s process, or as a vexatious proceeding. As the mother points out in her factum, the court has jurisdiction to sanction vexatious and abusive proceedings under the Family Law Rules, the Courts of Justice Act, and the court’s inherent jurisdiction to control its own processes.

[42] Rule 1(8), which I have set out above, lists methods by which a litigant can be sanctioned for non-compliance with court orders. Rule 14(21) permits the court to prohibit a party from bringing further motions without leave in cases where the party has tried to delay the case, add to its costs, or to abuse the court’s process by making numerous motions without merit.

[43] Rule 16 deals with motions for summary judgment, while section 140 of the Courts of Justice Act permits the court to stay a proceeding or prohibit further proceedings where the court is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court.

[44] A leading case on vexatious proceedings is Lang Michener Lash Johnston v. Fabian, [1987] O.J. No. 355 (H.C.). In it, the court sets out a number of identifying signs of a vexatious proceeding. These include:

(a) Bringing one or more actions to determine an issue which has already been determined; (b) Finding it obvious the action cannot succeed, or would lead to no possible good, or if no person could reasonably expect to obtain relief; (c) Bringing a proceeding for an improper purpose, such as harassment and oppression of others by multifarious proceedings brought for purposes other than asserting legitimate rights. (d) “rolling forward” grounds and issues into subsequent actions, repeated and supplemented and often adding as defendants lawyers who acted for or against the litigant in earlier proceedings; (e) Failing to pay costs of unsuccessful proceedings (f) Persistently taking unsuccessful appeals from judicial decisions.

[45] The principles set out in Lang Michener have been followed and adopted in family law cases. See, for example, Ballentine v Ballentine. In Ballentine, in particular, the Court of Appeal held that the application of s. 140 of the Courts of Justice Act is particularly important in family law matters, given the availability of variation orders for support and custody. [Ibid at paragraph 39]. The Court of Appeal went on to note with approval the decision of Polowin J in Beattie v Ladouceur and said “without some mechanism to prevent abuse, a party could bring an endless stream of variation applications, with a new one launched as soon as the last one has been denied.” [Ballentine, note 9 above, at paragraph 39]. The question here is whether there is the kind of abuse that requires the court to intervene.

[46] Put another way, do the father’s current motion to change and how he has conducted himself in it meet the fairly high threshold of being a vexatious proceeding or an abuse of the court’s process. In my view, while they comes close, they fall just short of being an abuse of process or a vexatious proceeding.

[47] Because of the peculiar nature of family law proceedings which contemplate changing final orders if there has been a material change in circumstances, one cannot automatically conclude the current motion to change is an attempt to re-litigate an issue that has already been determined. That being said, the court must also be mindful of the comments of the Court of Appeal in Ballentine, set out above.

[48] The father’s current motion to change on its face seeks much of the same relief as he unsuccessfully sought on the first motion to change and in his appeal of that decision. He has certainly “rolled forward” many of the same grounds. There may, however, be changes in circumstances that could conceivably result in a change to the initial order. I cannot yet determine the motion to change is certain to fail in its entirety.

[49] As to whether the motion to change is brought for an improper purpose, or with a view to harassing the mother, again, father’s behavior comes close, but has not quite reached the necessary threshold set out in the case law. The 4 volume affidavit he filed, ostensibly in response to the motion to strike, is vexing and harassing in its sheer volume and the timing of its delivery. In fact, the father’s actual response to this motion does not begin until paragraph 465 of the affidavit. That being said, I am not persuaded father’s sole purpose is to harass the mother, although I have no doubt it is an underlying motivation to him, particularly given the trial judge’s factual finding concerning the “unbridled hostility” the father bears toward the mother. Nothing in his current motion to change suggests any abatement of that hostility.

[50] It is true the father has been in breach of prior orders, particularly costs orders. He has finally paid them all, with the exception of the interest owing on the trial costs order. I can, and will, deal with that default in a fashion that falls short of declaring this proceeding vexatious or an abuse of the court’s process.

[51] If, however, the father persists in his current behaviour of complying with court orders only at the last moment, “dumping” inordinate amounts of material on the mother late in the day, and essentially recycling the same arguments, he may yet have this motion to change declared an abuse of process. While I dismiss this aspects of the mother’s motion, I do so without prejudice to her renewing it at a later date if the father’s behavior continues.

Vexatious litigant

[52] The mother relies on section 140 of the Courts of Justice Act in asking that father be declared a vexatious litigant. Section 140 permits the court to prohibit a person from instituting any further proceedings if the court is persuaded that the person has “persistently and without reasonable ground” instituted vexatious proceedings in any court, or conducted a proceeding in a vexatious manner. Section 140(5) provides that nothing in the section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground.

[53] Similarly, rule 14(21) of the Family Law Rules says:

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.

[54] In deciding whether a litigant is vexatious, the court must look at the whole history of the matter, and not just whether there was originally a good cause of action.

[55] Here, father failed completely on his first motion to change. His appeal of the dismissal of that motion to change was also dismissed. The fact father immediately launched this current motion to change, advancing essentially the same grounds as he argued on the first motion to change is an indicator that he may be a vexatious litigant.

[56] Father’s response to this motion to strike is also an indicator of his adding to costs and abusing the court’s process. A four-volume affidavit of more than 104 pages, with 145 exhibits added to the 104 pages is neither responsive to this motion, nor proportionate in all the circumstances. The court must control its own process. Here, the provisions of rules 2(1) and 2(2) of the Family Law Rules are critical. They say:

2(2) Primary Objective – The primary objective of these rules is to enable the court to deal with cases justly. 2(3) Dealing with Cases Justly – Dealing with a case justly includes, a) Ensuring that the procedure is fair to all parties; b) Saving expense and time; c) Dealing with the case in ways that are appropriate to its importance and complexity; and d) Giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[57] Here, father has already had a 12-day trial of his first motion to change. He lost. He immediately appealed that decision. He lost again. As soon as the Court of Appeal dismissed his appeal, he immediately launched this current motion to change, advancing virtually the same grounds as he had advanced before. When he did so, he was in breach of numerous orders. He has finally complied with them, slowly, reluctantly and grudgingly.

[58] Father’s behaviour in delivering a cheque for costs in the middle of argument can only be viewed as either grandstanding or insulting to both the court and its processes.

[59] All of that being said, I am not yet persuaded the father’s behaviour has reached the very high level that would result in his being declared a vexatious litigant. His clearly vexing behaviour, however, must be limited and curtailed in other ways. The court has broad discretion to do so, and I intend to exercise my discretion in order to impose limits on the father’s behavior. I set those limits out, in full, in the Disposition section of these reasons, below.

[60] I turn now to one of those possible limits, namely, the requirement for security for costs.

Security for costs

[61] Mother asks for an order that father post security for costs as a condition precedent to his proceeding further. Rule 1(8) of the Family Law Rules permits the court to impose an order for costs if a person has failed to obey an order in a case. Rule 56.01(c) of the Rule of Civil Procedure makes an order for security for costs available where the respondent has an order against the applicant for costs in the same or another proceeding that remain unpaid in whole or in part. That is the case here.

[62] Rule 56.01(e) permits an order for security for costs where there is good reason to believe that the application is frivolous and vexatious and the applicant has insufficient assets in Ontario to pay the costs of the respondent.

[63] Here, the current motion to change has many hallmarks of a frivolous vexatious proceeding, although I have not yet declared it so. The fact the various outstanding costs orders remained unpaid for so long, and still remain unpaid in part also suggest a vexatious proceeding. I have not quite been prepared to strike this motion to change on that basis, but am prepared to make an order for security for costs as a method to ensure the process is fair to all parties, and to provide appropriate resources to this case.

[64] If the mother is correct that the father’s current motion to change will likely fail, she is likely to be awarded significant costs. She was awarded costs of over $70,000 on the first motion to change, but these costs were not paid for nearly a year and a half until the middle of argument on this motion to strike. Father’s delay in payment, and his attitude in payment suggest to me the father may not have sufficient assets in Ontario to pay costs. He advised the court (although not in any sworn statement) that he had to borrow the money to pay the costs he proffered during the motion. As I see it, there is ample reason to require the father to post security for costs as a precondition to his proceeding further.

[65] This is the most appropriate way to address the father’s seeming reluctance to comply with court orders, while wishing to engage the court’s process for his own benefit. As has been said many times, a party “cannot expect to come before this court and be given a voice in circumstances where he has thumbed his nose at the legal system by deliberately breaching an order.” Hughes v Hughes.

[66] Therefore, within 30 days of the release of these reasons, the father shall pay the sum of $70,000 into court to the credit of this motion to change as security for the mother’s costs. Of course, if the father succeeds on his motion to change and no costs are awarded to the mother, he will receive the money back. If, however, he loses again and significant costs are again awarded to the mother, she will be able to collect without having to wait more than a year for father to comply with his obligations. This is an appropriate way to ensure the process is fair to all the parties.

Disposition:

[67] The mother’s motion is therefore granted, in part, on the following terms:

a) Within 30 days of the release of these reasons, the father shall pay to the mother the outstanding accrued interest of $2,353.61 owing on the trial costs order; b) Within 30 days of the release of these reasons, the father shall pay the sum of $70,000 into court to the credit of this motion to change as security for the mother’s costs; c) Within the 30-day period outlined in (a) and (b) above, father is prohibited from taking any further steps of any kind in this motion to change; d) If the father fails to comply fully and completely with paragraphs (a) and (b) above, his motion to change is stayed, and he is prohibited from taking any further steps in the motion to change, or bring any motions of any nature or kind without first obtaining leave of this court to do so, even if he pays the sums set out in (a) and (b), above, but after the 30-day period specified; e) The mother’s motion to declare the father a vexatious litigant and this proceeding a vexatious proceeding is dismissed, but without prejudice to its being renewed at a later date; f) If the father fully and completely complies with paragraphs (a) and (b), above, then the mother shall have 45 days from the date of the father’s compliance to deliver an amended response to the motion to change; g) If, and only if, the mother delivers an amended response as contemplated by (f), above, the father may reply to it, provided his reply is strictly limited to replying only to new matters raised in the mother’s amended response. The father’s reply, if any, shall be limited to no more than 10 pages in length, including attachments or exhibits. It shall be delivered within 14 days of his being served with the mother’s amended response, failing which he shall be prohibited from delivering a reply; h) If the motion to change proceeds pursuant to compliance with (a), (b), (f) and (g), above, the parties will schedule a combined settlement/trial management conference to schedule necessary next steps. Apart from the potential motion contemplated by (e), above, no further motions prior to the hearing of the motion to change shall be permitted without leave of the court.

[68] If the parties are unable to agree on the costs of this motion, they shall argue the issue in writing. The mother shall submit a bill of costs and submissions within 2 weeks of the release of these reasons. Submissions shall be no longer than 2 pages in length, excluding attachments.

[69] The father shall respond in the same manner within 10 days of receiving the mother’s submissions.

[70] If mother is ultimately awarded costs of this motion, those costs may be satisfied out of the funds father is required to post as security for costs, as set out in paragraph 67(b), above.

MESBUR J. Released: 20170515