Court File and Parties
Court File No.: 5514/08 Date: 2017 05 16 Superior Court of Justice – Ontario
Between: Agnes Zinyama-Mubili, Applicant N. Hyppolite, Counsel for the Applicant
And: Viktor Mubili, Respondent V. Mubili (Self-Represented)
Heard: May 10, 2017
Reasons for Judgment
Trimble J.
1Mr. Mubili brings a Form 14 motion, seeking an order:
- Granting leave to bring this motion;
- Setting aside Donohue, J.’s order and $3,400 cost award of 25 April, 2017;
- Ordering that the Children’s lawyer be appointed in the ‘upcoming motion to change’ Mossip, J.’s custody and access order of October 31, 2008;
- Transferring this file to Brampton as that is where the Applicant and child now live;
- Vacating the requirement for leave to bring proceedings as it resulted from the Applicants’ fraud and dishonesty, and which order she has abused.
2Mr. Mubili insisted I address, first, Donohue, J.’s order. I required him to address the issue of Leave.
3For the reasons that follow I do not grant Mr. Mubili leave to bring his Motion to Change. I do not need to deal with items 3 to 5, above.
1. Leave to Bring Motions
4There are three orders of this court which bar Mr. Mubili from bringing any further process without leave. What is the status of those orders?
- 13 May, 2008 – per Langdon, J., in which Langdon J set no limits on the extent of his order. Landon, J.’s order is still in effect.
- 12 May, 2010 – per Snowie, J., in which she said “ Mr Mubikli seems to believe that he does not have to follow Ct. orders .” then listed many ways in which Mr. Mubili failed to obey Court orders. She added “ Mr. Mubili shall not bring any further motions before this Ct without leave of this ct and until all o/s costs orders have been paid. ” Snowie, J.’s limit is conjuctive. So long as he owes costs, he needs leave. Once the costs are paid, he no longer requires leave. I do not know if all the cost awards outstanding at the time of Snowie, J.’s order. Costs orders since then remain unpaid. The onus is on Mr. Mubili to establish that the costs then outstanding have been paid.
- 9 & 20 July, 2010 – per Quigley, J. in which he said that Mr. Mubili is prohibited from bringing any further motions until all appeals from Gray, J.’s and Mossip, J.’s orders are exhausted. Those appeal rights have been exhausted. Quigley J.’s order is now of no force. Quigley, J. referred specifically to the unqualified need for leave imposed by Langdon, J.
5I deny Mr Mubili leave to bring his Motion to Change for four reasons, each of which, on its own, is sufficient to deny him leave.
a. An Arguable Case for Material Change?
6In order to obtain leave to bring his Motion to Change, Mr. Mubili must convince me, by evidence, that he has an arguable case that there has been a change in circumstances sufficient to sustain a Motion to Change.
7Mr. Mubili’s oral argument was replete with evidence given from the floor, half-truths, conclusory statements, and polemic. I have largely ignored his submissions. Instead, I have looked to his evidence.
8In his Affidavit, Mr. Mubili provides as reasons for a Motion to Change a number of events that he says require access and custody to change. First, he refers to events that occurred between 2004 to 2010, all of which were argued several times before this Court, none of which are new, and none of which represent a Material Change in Circumstances. Rather, they are a re-argument of old arguments already adjudicated upon. These include, Ms. Mubili’s alleged infidelity, that the marriage was a sham for her immigration purposes, fraud and deceit inducing him to agree to the 31 October, 2008 custody and access order, Ms. Mubili’s alleged theft from the joint account, Ms. Mubili re-partnering multiple times, Ms. Mubili’s living with different partners without being married, frequent change in the child’s change in residence and schools, issues arising from a trip to Zambia in 2008, and alienation.
9The events which Mr. Mubili alleges, which occurred after 2010, include six alleged incidences of Ms. Mubili interfering with Mr. Mubili’s access between 2010 and January 27, 2017. These include such petty matters as a five minute delay in access, one denial of phone access and one denial of video access. There has been police involvement when access is not delivered in accordance with Mr. Mubili’s view of access. He is the complainant in all police reports he filed as exhibits. He says that he was berated by Ms. Mubili’s current partner in front of the child, on December 16, 2016. There is no evidence other than he claims he was “threatened and humiliated”. These are evaluative statements, not factual. I am not convinced that there is an arguable case, based on the evidence before me, that there has been a material change in circumstances to support a Motion to Change.
10Mr. Mubili says that Ms. Mubili told him that the child was writing suicide notes which was only stopped in 2016 when she promised the child that the child could move to his father’s in 2017. He says that she later recanted on the suicide note issue. Mrs. Mubili denies this. There is no evidence to support Mr. Mubili’s view, only hearsay. I am not convinced that there is an arguable case, based on the evidence before me, that there has been a material change in circumstances to support a Motion to Change.
b. This Motion is an Abuse.
11Motions, like actions, should be stayed as an abuse of process only in the clearest of cases (see: Sussman v. Ottawa Sun (1997) 22 O.T.C. 75 (Ont. Gen. Div.)). Bringing the same claim for relief multiple times constitutes such an abuse, where it is adjudicated upon (see Jaremko v. Metro. MTCC No. 875 (1988) 20 C.P.C 85 (Ont. C.A.)).
12Mr. Mubili’s motion for Leave is an abuse of process. Taken as a whole, this motion for leave to bring a Motion to Change the 31 October 2008 consent order of Mossip, J. is little more than an attempt to re-litigate issues already decided. Mr. Mubili does not like the consent custody and access order he agreed to. He tried to set it aside only 4 months later, and appealed from every one of his unsuccessful attempts to set it aside. Mr. Mubili does not like Gray, J.’s 16 December 2009 child support order. He tried to have it stayed pending his attacks on the custody and access orders. He was unsuccessful. He tried to have it varied. He was unsuccessful. He was, however, partially successful on appeal in reducing the amount of child support payable.
13This motion must also be seen in context of other motions in this application for Divorce.
14Mr. Mubili’s argument and evidence before me centered on Ms. Mubili’s alleged infidelities in the marriage (pre 2006) and her life choices. He does not approve of her partners since separation. He does not approve of her living with her partners out of wedlock. He does not approve of her choice of religious instruction for the child. He does not approve of her parenting style. He does not approve of her general morality which he sees as a marked departure from “Zambian culture”. His dislike and disdain for Ms. Mubili is palpable.
15Mr. Mubili not only does not like Ms. Mubili, he does not like the 31 October, 2008 custody and access order, and does not want to pay Ms. Mubiili costs or and child support. All orders that he pay anything to Ms. Mubili have been ignored. He has not been and will never be satisfied with or will abide by any order that he does not like.
16Other Judges’ observations support my view of Mr. Mubili, his actions and his motivations.
a. On 25 February, 2009, Miller, J., said “ It seems clear to me that Mr. Mubili is discontented now with the terms of [the 31 October, 2008 custody and access] order, but he has not shown that the order should be varied at this time .”
b. In his judgment at Mubili v. Mubili, Price, J. heard Ms. Mubili’s motion to dismiss Mr. Mubili’s appeal to the Divisional Court from Justice Miller’s order of February 25, 2009, dismissing Mr. Mubili’s motion to set aside a final order of Justice Mossip, made October 31, 2008. Price, J. provided a detailed review of the action up to that point.
Price, J. noted at para. 2: “ The Court has intervened, in one action by granting summary judgment dismissing Mr. Mubili’s claim, in two others, by staying the actions until Mr. Mubili has paid costs and security for costs and, in a fourth, by dismissing Mr. Mubili’s motion to set aside a consent order dealing with custody and access and by requiring Mr. Mubili to obtain leave of the court before taking any steps other than his appeal from the order dismissing the consent order .”
Price J. commented, inferentially, that Mr. Mubili’s statements and evidence are not reliable. For instance, Price, J. said at para. 73 “ Mr. Mubili acknowledged before Justice Miller that what he now alleges were misrepresentations by his wife were known to him before he signed the minutes of settlement on October 31, 2008. ” Price, J. also commented that Mr. Mubili’s motivation for trying to undo the custody and access order was his expectation (which he did not share with others at the time) that certain things would later occur. Price, J. said at para. 74: “ It appears from the transcript that what later caused Mr. Mubili to seek to resile from the settlement he had entered into was the fact that his wife did not abandon her claim for [child] support as he had hoped she would in exchange for his agreeing to her having custody of Isa .” He continued at para. 75: “ Whatever Mr. Mubili’s expectation might have been as to whether his wife would continue pursuing her claim for child support, this is not a basis upon which the Court would interfere with either Justice Mossip’s or Justice Miller’s order. ”
c. Mr. Mubili tried to set aside the custody and access order again. Quigley, J. denied it (see: Mubili v. Mubili, 2010 ONSC 3928, [2010] OJ No 2944). In that motion, Mr. Mubili accused Ms. Mubili of parental alienation, and of being in contempt of the access provisions of the custody and access order. Mr. Mubili wanted to take custody away from the Mother and grant it to him on an interim basis, and a declaration that Ms. Mubili be found in contempt of the 2008 consent access order. He said that Ms. Mubili has engaged in alienation tactics such that Isa now displays “Parental Alienation Syndrome”.
These are all allegations he advanced before me.
d. Quigley, J. held at para. 4: “ I find that Mr. Mubili has failed to discharge his evidentiary burden to show that there has been any material change of circumstances that would permit the Court to consider whether a variation in the consent custody arrangements is required in the best interests of the child. Instead, the evidence shows that Isa is a happy child who actually looks forward to seeing his father, not one who rejects Mr. Mubili as he claims. There is demeaning, speculative and unsubstantiated innuendo directed to Ms. Zinyama that is advanced by Mr. Mubili as evidence of material change, but there is no credible or cogent evidence presented that raises any reasonable suggestion that Isa is a victim of parental alienation caused by his mother. ”
This comment is equally applicable of Mr. Mubili’s submissions and evidence before me.
e. With respect to Mr. Mubili’s conduct towards his wife, Quigley, J. said at para. 26 and 27: “ It is interesting to note that much of Mr. Mubili’s allegedly corroborating evidence is derived from tape recordings that he has made at various points of time relating to encounters that have occurred between him and Ms. Zinyama. He acknowledged in argument on this motion that he records everything that she says. Unfortunately, however, the portions of the recordings that he chooses to produce as evidence to corroborate his position conveniently do not include the entire discussions that took place, in this case relative to the car seat. The transcript selectively edits out the portions of his recording that do not suit his purposes. Once those conversations are understood in their entire context, however, it explains why it was that she was unwilling to release Isa to him for one hour on October 2, 2008. Mr. Mubili’s presentation before the Court showed that he relies extensively on the recordings he has made on his tape recorder as evidence, but he has not provided full transcripts of conversations or encounters to permit them to be understood in their entirety. Instead, he has used this device as a tool that permits him to reproduce only the evidence that he wishes the Court to hear. Inevitably, however, the incomplete and selectively edited nature of those recordings actually causes them to demonstrate no credibility or reliability and to undermine rather than corroborate his factual allegations.
As for his decision to employ slanderous language to describe his allegations of Court complicity in the alienating conduct allegedly being perpetrated against him by Ms. Zinyama, it is frankly beneath comment. However, fair play and decency require that I make one comment on those statements, but only to refute his claims against Ms. Kathryn Gamble-Lerchner, the senior family law duty counsel at the Halton County Courthouse who Mr. Mubili slanders with reckless abandon. I would simply note for the record that she is actually one of the most reliable, knowledgeable and hard-working practitioners of family law at the Halton bar. There is no justification for his questioning of her integrity or his unfounded allegations of bias against her. I will leave it to others to judge whether this Court has, as Mr. Mubili describes it, “continued to issue gender sensitive decisions which have assisted Agnes in her alienation crusade”, but his allegations against Ms. Gamble-Lerchner must be dismissed as abusive.”
While Mr. Mubili did not put recordings in front of me, he did put email and other written communication that he misconstrued to his advantage. For example, he relied on an email from Ms. Mubili in which he said Ms. Mubili admitted that he owed her no money. The email did not say that. I tried to explain what it said. Mr. Mubili did not appear to accept my explanation.
f. Mr. Mubili’s real motivation at that time (and probably still) in trying to set aside the custody and access order is money. Quigley, J. said at para. 29: “ In fact, Mr. Mubili acknowledged at the hearing before me that he was prepared to give Ms. Zinyama full custody of Isa if she would just agree that he did not have to pay child support to her. He acknowledged to me that he signed the Minutes of Settlement with that proposition firmly in mind. As for the absence of child support from the Minutes of Settlement, and his claim that Justice Mossip “fraudulently” included child-support in her final order, that is a grossly inaccurate statement of what transpired, and it fails to recognize that Justice Mossip did what she did because of her judicial duty .”
g. At para. 35, Quigley, J. said, re the quality of Mr. Mubili’s evidence: “ At its core, Mr. Mubili claims that his son Isa needs protection from the abuse being perpetrated against him and his son by Ms. Zinyama. The problem is that there is no cogent or reliable evidence present in this case to support those allegations. His evidence is entirely anecdotal and not real. He prepared his recordings to serve as evidence, but he only produced heavily edited transcripts, which when combined together serve the purposes of the battle he continues to wage against Ms. Zinyama but which bear only slight resemblance to the actual occurrences and verbal exchanges that took place .”
The same observations apply to Mr. Mubili’s conduct and evidence before me.
h. At para. 40, Quigley, J. said: “ I have included these lengthy references to the evidence on the hearing to provide a thorough understanding of the flavour of Mr. Mubili’s motion, and the quality of evidence that he sought to proffer as support for the parental alienation and contempt he alleges against Ms. Zinyama, however, I am not persuaded by any of it .”
I am of the same view.
i. In his judgment in his support decision found at Mubili v. Mubili, 2011 ONSC 1227, Murray, J. said at para 35 to 36: “ Mr. Mubili has outstanding costs orders which have been ignored. His estimate is that he owes Mrs. Zinyama-Mubili approximately $14,000 for costs awarded to her. Mrs. Zinyama-Mubili put the figure somewhat higher. For purposes of this application, the fact remains that there are significant outstanding cost obligations which have not been paid by Mr. Mubili.
Mr. Mubili's high-handed refusal to comply with court orders is sufficient reason to disentitle him from spousal support. He has created significant economic hardship for Mrs. Zinyama-Mubili since the date of separation and that financial hardship cannot be ignored when considering the means, needs and other circumstances of both parties .”
Mr. Mubili still owes almost $23,000 in costs orders, as addressed below.
j. At para. 37, Murray, J. also addressed Mr. Mubili’s animus and unreasonable approach, when assessing Mr. Mubili’s claim for spousal support from Ms. Mubili. He said: “ Mr. Mubili's current unemployment arises from and is a direct result of his invitation to be laid off from his employment as an engineer while employed by Cameco. From the evidence, it is undisputed that Mr. Mubili made demands on his employer and asked to be laid off if such demands were not met. Mr. Mubili admitted in his testimony that his demands were made in the context of a troubled relationship with his employer. In the circumstances, it must have been obvious to Mr. Mubili that Cameco would prefer to terminate his employment rather than meet his demands. While Mr. Mubili may not have been happy in his employment, as a practical matter, he ought to have secured suitable alternative employment before he volunteered to be terminated. Mr. Mubili's termination by Cameco and his lack of employment income is entirely a result of his own action and was made with reckless disregard for his obligations to Mrs. Zinyama-Mubili and for his need to be self-sufficient .”
k. In her decision at Mubili v. Mubili, 2011 ONSC 185, Coats, J. dismissed Mr. Mubili’s blunderbuss motion for 6 kinds of relief including a refraining order, an order restraining Ms. Mubili from sending him certain email, and an order dismissing Ms. Mubili’s Divorce Application. She held that none of these disclosed an arguable case, mostly because of lack of evidence.
17Mr. Mubili’s conduct in this application should also be seen in context of his actions against Ms. Mubili outside of this application. This year, he has commenced 3 small claims court actions in Timmins against Ms. Mubili, claiming the maximum $25,000, for various relief, arising from the same circumstances on which he founds his family claim, which have been rejected time and again by this Court. None of the Small Claims actions have been adjudicated upon, and I make no comment on their merits. I refer to them to illustrate Mr. Mubili’s desire to have the same fights on multiple fronts, in multiple courts, and in multiple cities.
18Finally, Mr. Mubili’s correspondence, even when sent on the pretext of dealing with a child related issue, is abusive.
c. Failure to Pay Child Support:
19Ms. Mubili says that Mr. Mubili has failed to pay child support. She does not have the FRO statement but says she has received nothing. Mr. Mubili attached as an exhibit a spreadsheet of alleged child support payments he says he made (which he generated for Court purposes). He says that he has produced to Ms. Mubili a large binder of cheques he said he wrote. This binder is not before the Court. She says that she never received theses cheques. He is the only one who can prove that child support payments were made. He has failed to do so. I do not accept his spreadsheet as evidence of his payments. It is self-generated by a party who has indicated his unreliability as a witness.
20Aside from not producing any evidence of child support paid, Mr. Mubili has not provided any evidence of his alleged reduced capacity to pay child support, which he says will be part of his Motion to Change. He filed no financial statement.
d. Failure to Pay Costs Awards:
21Ms. Mubili says that Mr. Mubili has not paid 8 cost awards made between 20 May, 2009 and 26 May, 2011, totalling $22,889.50. Only he can offer evidence that he paid those costs awards. He has offered no such evidence. Instead, he offers an affidavit, attached to his an affidavit filed on this motion, that certain costs orders were paid. No proof of payment is offered by way of cancelled cheque, bank record, or transfer document.
22To add further insult, Donohue, J., in her endorsement of 25 April, 2017 said that her costs award of $3400 had to be paid before the motion before me could be brought. I agree with Snowie, J.; Mr. Mubili does not think that he is bound by Court orders. He blithely ignores Donohue, J.’s order, as he has all the other costs orders. He has not appealed it. Rather than pay it and argue it should be refunded, he complains about Donohue, J.’s unfairness in making it.
23I decline to grant leave because of Mr. Mubili’s failure to pay the outstanding costs orders made in this action, because the motion for leave is an abuse, and because it does not appear on the record before me that he has paid child support in accordance with interim orders.
24Denying leave is draconian. Generally matters should be determined on their merits. However, in this case, the draconian remedy of denying leave to bring the Motion to Change, based on the record in front of me, is necessary.
25While the Court does not wish to prevent people from pursuing their rights through the courts, they cannot do so in face of outstanding costs orders, where the failure to pay is unjustified (Susin v Chapman, 2002 CarswellOnt 4213 (S.C.J.) aff’d 2004 CarwellOnt 143 (C.A.)). Costs orders, like any other court order, are to be obeyed. Rules must be obeyed. Orders and rules must be enforced. To hold otherwise in the face of persistent failure to pay cost orders would amount to giving litigants access to the courts with no fear of consequences ([Stacey v. Barrie Yacht Club, 2003 O.J. 4171 (S.C.J.) para. 15; Baksh v. Sun Media para 14, 16-17, 19; 1066087 Ont. Inc v. Church of the First Born Apostolic Inc. 2004 CarswellOnt 3010 (Div.Ct.)). In order to deny a litigant access to the courts, however, there must be many costs orders that remain unpaid, the amounts must be significant and/or the failure to pay must be egregious.
26This is one of these cases. Mr. Mubili’s litigation strategy has been aggressive. He brought motions and appeals from any result not favourable to him. He was entitled to bring all of these proceedings. He knew when he brought each proceeding that he might lose, and if he lost he would be responsible for the cost consequences. He lived, and must die by the litigation sword.
27Once the cost orders were in place, Mr. Mubili has not paid them. Instead he brought more proceedings. He has engaged in a game of ‘bob and weave’ wherein he files affidavits full of irrelevancies, old issues already argued, broad conclusory statements, and polemic, but which do not address his failure to pay cost orders.
28Mr. Mubili has not made any payment, not even a token one, toward the accumulated cost debt to show good faith. Rather than make a good faith payment, he continues to fight. Had he made any payment as a show of good faith, the outcome of this motion might have been different.
29For the foregoing reasons, I find that Mr. Mubili has elected not to pay the costs orders, while pursuing other litigation. He is entitled to pursue his remedies by any strategy that complies with the Rules and orders made. However, he cannot do so with impunity. Mr. Mubili’s breaches of the cost orders have become contumelious. I refuse him leave to bring a Motion to Change.
30Langdon, J.’s order regarding no further proceedings remains in place.
2. Donohue, J.s order
31Mr. Mubili wishes me to set aside Donohue, J.’s 25 April, 2017 costs order of $3400. He says that he brought the motion in the way he did, bouncing back and forth between Brampton and Milton based on the Court’s advice. It is the Court’s fault, inferentially, that he was the subject of the costs order.
32I reject this for the following reasons:
- The cost award was made because of short service over the weekend. It has nothing to do with where the motion was brought or who said it should have been brought in any specific place.
- There is no evidence that Donohue, J.’s order is unfair.
- Donohue, J.’s order is a final order. Mr. Mubili did not appeal from it. I have no jurisdiction to set it aside.
- The costs were ordered paid before this motion proceeded in Milton. Mr. Mubili has not made that payment or any portion of it.
- There is no evidence to support his submission that it is the Court’s fault that the motion was brought in the form and jurisdiction that it was.
Costs
33The Applicant is fully successful and is entitled to her costs. I will address costs in writing. Submissions are limited to three double spaced pages (excluding Bills of Costs and cases). The Applicant’s are to be served and filed by 4 p.m., 25 May, 2017, and the Respondents are to be served and filed by 4 p.m., 8 June, 2017.
Trimble J.
Released: May 16, 2017