CITATION: Rego v. Santos, 2017 ONSC 4616

COURT FILE NO.: FS-16-309-00

DATE: 20170728

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: VICTOR REGO, Respondent

AND:

CLAUDIA SANTOS, Appellant

BEFORE: Ricchetti, J.

COUNSEL: C. Santos, self-represented

L. Campbell, counsel for Victor Rego

HEARD: July 24, 2017

ENDORSEMENT

The Appeal

1This is an appeal of the Ontario Court of Justice order of Justice Dunn dated the 17^th^ day of November, 2016 whereby the learned Justice denied Ms. Santos leave to bring a Motion to Change.

2No issue was raised with respect to this court's jurisdiction to hear this appeal. The parties proceeded on the basis this court had jurisdiction to hear this appeal under s. 48 of the Family Law Act or s. 73 of the Children's Law Reform Act. I am satisfied that this court has jurisdiction to hear this appeal.

Background

3After a lengthy trial, Justice Dunn made a final order on June 26, 2014 ("Dunn Final Order") which provided, among other things,

10. The Respondent, Claudia Santos shall have access to Sophia, at the discretion of the Applicant, Victor Rego, as to the frequency, duration, place and supervision.

11. The Applicant, Victor Rego shall seek professional advice about the nature of access by the Respondent Claudia Santos to Sophia that would be in Sophia's best interests. …

4Ms. Santos was self-represented during the trial.

5Sophia, referred to in the Dunn Final Order, is Sophia Franco dos Santos, born March 16, 2010 (now 7), the only child of the marriage.

6Subsequently, the parties made written submissions on costs. On August 26, 2014 Justice Dunn order that Ms. Santos pay costs of $126,860 ("Dunn Cost Order"). The Dunn Cost Order went on to provide:

The Respondent, Claudia Santos, shall pay the Applicant at least $30,000 out of the cost award of $126,860 before the Respondent may bring any further proceedings in this court.

7Ms. Santos appealed both Justice Dunn's orders but the appeal was dismissed on February 25, 2016 for delay.

8On October 26, 2016 Ms. Santos, now represented by counsel, brought a motion seeking leave to bring a Motion to Change without having paid the minimum $30,000 payment required by the Dunn Cost Order. This appeal was brought within the 30 time period.

9Mr. Rego filed responding materials to this motion for leave.

10The motion for leave came before Justice Dunn. While Justice Dunn accepted the documents to view the request, he refused to permit the leave motion to be accepted for filing, ordered that the materials be "mailed back' because:

The R. is well aware that my order of 26 August 14 requires that at least $30,000 out of the total cost award of $126,860 must be paid before R. may bring any further proceedings in this court.

I direct admin. in future to not accept any document from R., unless she file proof that at least $30,000 in costs have been paid.

(the Dunn Leave Order)

11There was no reference in the Dunn Leave Order endorsement the the motion materials were reviewed to assess whether there was any reasonable grounds for the proposed Motion to Change.

12It is this order, the Dunn Leave Order, that is under appeal.

THE ANALYSIS

The August 26, 2014 Order pre-requisite that costs be paid prior to any further proceedings

13In my view, an order which provides for an absolute prohibition against further proceedings involving issues of custody and access unless a cost order is paid is unenforceable. There must always be an opportunity for a parent, at a minimum, to seek leave to bring a proceeding where the best interests of the child(ren) are potentially at stake. One can easily imagine situations where a child's safety or best interests are seriously compromised. To impose an absolute prohibition on the parent from bringing a proceeding to deal with the children's best interests, particularly for non-payment of monies, would be an abdication of this court's parens patria jurisdiction.

14Costs orders are made for good reason and must be complied with. In some cases it may be appropriate to require a party litigant to pay an outstanding cost award before bringing further proceedings. Where such an order is made, an appropriate balance is struck by requiring the party who has not paid an outstanding costs order and desires to bring a further proceeding, to first obtain leave to bring the proceeding by explaining the reason for non-payment and the proposed grounds for the proceeding.

15The judge hearing such a motion for leave must consider all relevant matters to the proposed proceeding such as the reason for non-payment of the cost award, the importance of the issue and whether there are reasonable grounds for the proposed proceeding. By doing so, the court retains the jurisdiction and discretion to ensure that the interests of justice are served. This is particularly important when dealing with the best interests of children.

16A similar balance is struck under s. 140 of the Courts of Justice Act, where a litigant found to be a vexatious litigant may still obtain leave to commence a proceeding if the vexatious litigant establishes that the proposed proceeding is not an abuse of process and there are reasonable grounds for the proposed proceeding.

17In this case, I am satisfied that Justice Dunn denied leave because Ms. Santos had failed to pay the $30,000 of the Dunn Cost Order and failed to consider whether Ms. Santos' proposed Motion to Change should nevertheless be permitted to proceed.

Is there a Reasonable basis for the Proposed Motion to Change?

18Ms. Santos' materials and Mr. Rego's responding materials to the leave motion are before this court. For the sake of judicial efficiency, I propose to deal with the motion for leave. I have authority to do so under s. 134 of the Courts of Justice Act.

19Ms. Santos' motion seeks leave to "bring a motion to change final order with respect to access, custody and child support and to bring motion to note the Applicant in contempt of the final order of Justice Dunn dated June 26, 2014."

20In some ways, the proposed Motion to Change seeks to appeal certain aspects of the Dunn Final Order. In Ms. Santos' affidavit of October 28, 2016, at para. 14, she sets out the issues she seeks to raise in the proposed Motion to Change:

a) Custody and access;

b) Child Support and s. 7 expenses; and

c) a contempt motion against Mr. Rego for failing to comply with the Dunn Final Order.

Custody and Access issues

21With respect to the proposed change in custody, Justice Dunn's reasons were extensive and thorough. There was ample reasons for awarding custody of Sophia to Mr. Rego.

22There is nothing in Ms. Santos' affidavit which suggests that she has reasonable grounds to vary the custody award. Simply making assertions such as Sophia having demonstrated love for Ms. Santos and her siblings is not a material change and not a reasonable basis to permit this part of the proceeding to go forward.

23Turning to the issues of the assessment and access in the Dunn Final Order, Mr. Rego was given absolute discretion regarding Ms. Santos' access to Sophia. The Dunn Final Order required Mr. Rego to obtain professional advice regarding Ms. Santo's access - which the parties refer to as an assessment.

24There is no dispute that "professional advice" or assessment has not been obtained by Mr. Rego as required by the Dunn Final Order. Three years have gone by without an assessment.

25Ms. Santos submits that Mr. Rego has refused to comply with the Dunn Final Order in this regard.

26Mr. Rego explains that no assessment has been obtained because Ms. Santos has refused to participate in an assessment which includes a review of the case history and the issue of co-parenting. Mr. Rego states he would consider "unsupervised and/or increased access once a professional issued a satisfactory assessment that considered these issues". (emphasis added)

27On March 2016, Ms. Santos asked Mr. Rego to provide the names of three qualified assessors. There is no evidence that Mr. Rego responded to this request.

28During submissions, Mr. Rego's counsel advised that Ms. Santos obtained four assessments which Mr. Rego did not accept since the assessments make no reference to the assessor having considered the case history. I do not accept that Mr. Rego is the person entitled to direct what the professional should or should not have before him or her in making the assessment.

29I am satisfied there are reasonable grounds to assert that Mr. Rego is using the assessment to maintain discretion over Ms. Santos' access with Sophia. This conclusion is supported by the following evidence.

30There is no dispute that Ms. Santos' access with Sophia has been sporadic and supervised despite Ms. Santos' wishes to the contrary. At the time of the motion for leave, Ms. Santos had no access.

31There is evidence that Mr. Rego has capriciously exercised his discretion to prevent meaningful access by Ms. Santos with Sophia. For example, Mr. Rego cancelled numerous access visits. The cancellations were recorded by Brayden Therapeutic.

32On February 28, 2016, in response to a request from Ms. Santos for an access schedule for Sophia's birthday, March break and Easter, Mr. Rego wrote:

Leave me the fuck alone!!!!

…No access until you get treatment and fully comply with the final order!!!! Then I migh reconsider allowing supervised access, just might.

I told you you would never cross me again. I have SOLE and FINAL CUSTODY, you have access when I say so if I say so

…We do not want to hear from you. Sophia does not want to see you. Stop harass us. I do not want to lose control if you provoke me and jeopardize my own life.

33I am satisfied there are reasonable grounds to grant Ms. Santos leave to bring a Motion to Change on the issues of assessment and access. I am not deciding whether the Motion to Change the assessment or access provisions in the Dunn Final Order will succeed or not succeed, but only determining that such a Motion to Change on these issues may be brought by Ms. Santos.

Support and s. 7 Issues

34Turning to child support and s. 7 expenses, Ms. Santos submits that her 2014 income was not available at trial and that the child support (based on 2013 income) was erroneous since it included a "non-recurring significant bonus".

35Ms. Santos fails to explain why she waited more than two years to deal with the financial issues she now seeks to raise.

36Further, Ms. Santos did not file a Financial Statement or other documentary evidence to support her position regarding a change to the child support and s. 7 expenses.

37I have considered Ms. Santos' submission that her financial position has changed and she cannot pay the costs ordered. During submissions, Ms. Santos advised this court that she owns a home and has not sold or listed the home for sale. The home has equity. Ms. Santos' submission that she "will list it soon", simply is not a sufficient explanation why she hasn't previously sold the home and paid or attempted to pay the outstanding cost order.

38I am not persuaded that there are reasonable grounds for bringing a Motion to Change on this financial issue.

Contempt

39While Ms. Santos remains in breach of the Dunn Costs Order, she is not in a position to bring a motion for contempt. Ms. Santos may renew her motion for leave to bring a contempt motion after the Motion for Change has been decided.

CONCLUSION

40Motion for leave granted to bring a Motion to Change on the issues of assessment and access only.

COSTS

41Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

42Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

43There shall be no reply submissions permission of this court.

Ricchetti, J.