CITATION: Gonos v. Hadzipetros, 2017 ONSC 6773

COURT FILE NO.: FS-15-20004

DATE: 20171110

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nancy Anastasia Gonos (Moving Party)

AND:

Emmanuel J. Hadzipetros (Respondent)

BEFORE: Justice Kristjanson

COUNSEL: Kenneth Wise, for the Moving Party

E. Hadzipetros, In Person

HEARD: October 26, 2017

ENDORSEMENT AND DIRECTIONS

[1] By notice of motion dated August 3, 2017 in Form 14B under the Family Law Rules the wife brought a motion pursuant s. 140(3) of the Courts of Justice Act, RSO 1990, c. C.43 (“CJA”) seeking leave of a judge of the Superior Court of Justice to institute a proceeding. Leave is required because in June 2015, Justice Mesbur, a judge of the Superior Court of Justice, made a vexatious proceedings order against the wife under CJA section 140(1). In her factum on the motion, the wife specified that she was seeking leave to commence an application to vary a foreign support order made in a foreign divorce proceeding (California), and seeking leave to register the order of the California Superior Court dated March 25, 2010 under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”).

[2] Given the complex background of this case, I set out directions regarding the procedure applicable to this application for leave to institute proceedings under s. 140(3) of the CJA. I also raise questions regarding substantive issues the wife should be prepared to address when the application is argued.

Background

California Divorce and Support Proceedings

[3] The parties were married in Toronto in 1992. They have one child. They were divorced in the California in 2007, the state where they both resided at the time of the divorce proceedings. The California court dealt with all corollary issues arising out of the marriage including custody, access, child support, spousal support and division of matrimonial property. The 2007 California order awarded the former wife payment of monthly spousal support. The wife was ordered to pay child support to the husband.

[4] The husband moved for an order modifying spousal support. In a decision and order dated March 25, 2010, the Superior Court of California held that “spousal support permanently reduces to zero effective today”, and “the court terminates jurisdiction over spousal support.”

[5] On February 9, 2011 the Superior Court of California made a final order providing sole legal custody to the father.

California Vexatious Litigant Order

[6] By order dated April 22, 2010, the Superior Court of California, County of Ventura declared the wife to be a vexatious litigant pursuant to the California Code of Civil Procedure, section 391.1. The Court also issued a pre-filing order prohibiting the wife, by any name, from filing any new litigation in California in pro per.

New York Proceedings

[7] The wife moved to Ontario. The husband moved to the New York state. In September, 2013, the wife moved for an order directing the husband to pay $6,686 per month for spousal support. The New York Court held that it did not have jurisdiction to modify the spousal support provisions of the foreign (California) judgment of divorce where there was no currently effective support or alimony provision, given that the California court had terminated the wife’s support and she did not appeal that determination. The New York Supreme Court dismissed the wife’s petition by decision and order dated March 6, 2014.

[8] The wife appealed this decision to the Supreme Court of the State of New York, Appellate Division. By decision dated April 20, 2016, the Appellate Division affirmed the decision on different grounds. The Court held that the “issue of spousal support or maintenance was fully litigated by the parties in the divorce action, and the California court specifically decided that issue. Consequently, the former wife is barred from litigating this issue in New York.” The court relied on the general doctrine of res judicata or collateral estoppel. The Appellate Division also held that to the extent that the wife’s petition could be construed as a modification of the California order, the New York Supreme Court “properly concluded that it lacked the authority to modify the California order.”

Ontario Vexatious Litigant Order

[9] In 2015, the wife brought a motion in Ontario for custody of the 21-year-old son, child support and section 7 expenses pursuant to the Child Support Guidelines, as well as an order that her son attend reunification counselling. In an unreported decision dated June 19, 2015 Justice Mesbur dismissed the mother’s application.

[10] Justice Mesbur granted the father’s application to have the mother declared a vexatious litigant pursuant to section 140(1) of the Courts of Justice Act. Justice Mesbur held that the wife “is declared a vexatious litigant and is prohibited from continuing, commencing or prosecuting any litigation in any court without leave of a judge of the Superior Court of Justice.” She ordered the wife to pay the husband costs of $2,500 CAD, fixed and payable within 30 days. She declined to make orders enforcing outstanding costs awards from an earlier Hague application, or 3 years of child support arrears under the California order.

[11] Justice Mesbur held that:

In deciding whether a proceeding or a litigant are vexatious, the court must look at the whole history of the matter, and not just whether there was originally a good cause of action.

[12] Justice Mesbur set out seven factors that led her to make the vexatious proceedings order under CJA s. 140:

(1) Custody and access had been decided “again and again.” Mother’s previous motions to change custody had all been dismissed. She brought seven motions for custody in California for custody, and none succeeded. The court lacked jurisdiction to revisit the issue.

(2) Since the son was age 21, it was obvious the application could not succeed. No person could reasonably believe they could obtain a custody order in relation to a 21-year-old.

(3) Since there was no legitimate claim, Mesbur J. held: “I can only infer the claim is made for collateral reasons, namely to harass the father.”

(4) The mother continues to assert the same issues and claims regarding her son’s refusal to see her; she blames others for the situation in which she finds herself.

(5) The mother failed to pay the costs of the Hague application and failed to meet her child support obligations; costs had been outstanding for 11 years. “Given her failure to pay costs, the court should not permit mother to avail herself of the court system, when she has long been in breach of one of the court’s orders.”

(6) The mother had been unsuccessful in her numerous and repeated attempts to change prior orders.

(7) The California court determined the mother was a vexatious litigant, using criteria in s. 391(b) of the California Code of Civil Procedure that are similar to the criteria in s. 140 of the Courts of Justice Act.

Procedural Issues

[13] The Family Law Rules do not address the procedure applicable to seeking leave to institute a new proceeding in the face of a CJA s. 140(1) vexatious proceeding order. As a result, I issue these directions to the wife regarding her leave application.

[14] Section 140 of the Courts of Justice Act, which applies to family litigants who are subject to a vexatious proceedings order, provides that:

• a person subject to a vexatious proceedings order who seeks leave to institute or continue a proceeding must do so by way of application (s. 140(3));

• relief that may be sought on a section 140 (3) application is restricted to the granting of leave to institute or continue a proceeding, and rescission of the vexatious proceedings order. No other relief may be sought in the application (s. 140(4)(b); and,

• the Attorney General is entitled to be heard on the application (s. 140(4)(d)).

[15] Procedural rules governing applications for leave to institute proceedings under CJA section 140 (3) are set out in Rule 38.13 of the Rules of Civil Procedure. There is no equivalent rule under the Family Law Rules. The key provisions of Rule 38(13) of the Rules of Civil Procedure are that:

• The application shall be made in writing, unless a judge orders otherwise (R. 38.13(2))

• The application shall be commenced by filing both a notice of application and an application record (R. 38.13(3))

• The notice of application, application record and, if applicable, factum, must be served on all parties as well as on the Attorney General of Ontario (R. 38.13(6)), and proof of service must be filed

• the court shall not make an order under subsection 140(4) of the Courts of Justice Act granting leave to institute or continue a proceeding, or rescinding an order made under CJA s. 140(1), without giving the other parties and the Attorney General of Ontario an opportunity to serve and file a respondent's application record and factum. (R. 38.13(10))

[16] Rule 1(7) of the Family Law Rules, “Matters Not Covered in Rules”, governs in this case. It provides:

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.

[17] I set out directions applicable to this case below by analogy to the Rules of Civil Procedure, taking into context the history of the litigants and the oral argument and written materials filed to date.

Directions on Procedure re Rule 140(3) Application

[18] I give the following directions:

(1) The matter must be commenced by way of application in Form 8, pursuant to Rule 8 of the Family Law Rules.

(2) Pursuant to CJA s. 140(4)(b), the only relief that can be sought is an order for leave to commence the proceedings identified in the application. This is not a motion to vary a foreign support order or a motion to register a foreign order, but an application for leave to commence proceedings under CJA s. 140(3). This falls within the “Other” category on the Form 8, Claim by Applicant, page 4.

(3) The matter is generally subject to the Family Law Rules unless I specify otherwise.

(4) The application must be accompanied by an application record, which by analogy to Rule 38.09(2) of the Rules of Civil Procedure, shall contain:

(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;

(b) a copy of the notice of application;

(c) a copy of all affidavits and other material served by any party for use on the application; and

(e) a copy of any other material in the court file that is necessary for the hearing of the application.

(5) In this case, since the underlying proceeding for which leave is sought relates to spousal support, and there are unpaid costs awards and child support arrears that may be relevant to the CJA s. 140(4)(a) determination, the applicant shall prepare and file a Form 13 sworn financial statement to be contained in the application record.

(6) The applicant wife shall file a factum, with a brief of authorities containing the case law and statutory references.

(7) The application, application record and factum with brief of authorities shall be served and filed by March 16, 2017.

(8) In accordance with CJA s. 140(4)(d), the applicant shall serve the materials on the respondent husband, as well as on the Attorney General of Ontario. The Attorney General of Ontario shall be served in accordance with Rule 16.02(1)(h) of the Rules of Civil Procedure. Proof of service on both the Attorney General and the husband must be filed.

(9) The application will be heard orally, and will not proceed in writing.

(10) The respondent husband and the Attorney General may each serve and file a respondent’s application record and factum, although they are under no obligation to do so. If they choose to participate, the materials must be served and filed no later than April 12, 2018. If the husband chooses to not further participate, I will consider the evidence and factum filed on the initial motion.

(11) Reply materials, if any, served and filed by April 19, 2018.

(12) The husband may participate at the hearing by telephone, rather than travel to Ontario. If he wishes to participate by telephone, he must notify the Family Office no later than April 19, 2018, and appropriate arrangements will be made for his participation by telephone.

(13) The matter is adjourned to April 24, 2018 returnable as a long matter before me. I am seized of this matter.

Additional Directions and Comments

[19] Section 140(4)(a) of the CJA provides that 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 proceeding.” In this matter, the wife indicated that the proceedings would be (a) registration of the March 25, 2010 order of the California Superior Court, and (b) a proceeding under the ISOA for variation in support. However, counsel for the wife did not provide the court with any authorities which might be relevant to the test in CJA s. 140(4)(a). The court expects evidence and relevant authorities on all issues relevant to both abuse of process and reasonable grounds for proceeding with the underlying claims for which leave to proceed is being sought.

Registration of March 25, 2010 Order

[20] The wife seeks to register the California Order of March 25, 2010. That order provides: “Spousal support permanently reduces to zero effective today. The court terminates jurisdiction over spousal support.”

[21] There is a question as to whether this is a “support order” capable of registration under Part III of the ISOA. “Spousal support” is a defined term under s. 1 of the ISOA as follows:

“support order” means an order requiring the payment of support that is made by a court or by an administrative body, and includes the provisions of a written agreement requiring the payment of support if they are enforceable in the jurisdiction in which the agreement was made as if they were contained in an order of a court of that jurisdiction. (emphasis added)

[22] The Court requests submissions on whether the California order directing that “spousal support be permanently reduced to zero” is “an order requiring the payment of support” within the meaning of s. 1 of the ISOA. In the Court’s view, this is relevant to the issue of whether there are “reasonable grounds for proceeding” with the registration of the California order.

Variation of Support

[23] In oral submissions, the husband argued that under U.S. law, the California court’s order that “the court terminates its jurisdiction over spousal support” means that the order is final and cannot be varied by any court. This may be relevant to the “reasonable grounds” relating to the underlying variation proceeding. However, this Court cannot take judicial notice of foreign law. If any party relies on U.S. law, it must provide an expert opinion from a lawyer qualified in the appropriate jurisdiction (New York or California).

[24] The applicant must demonstrate that there are reasonable grounds for the proceeding to vary the California spousal order pursuant to the ISOA. The applicant resides in Ontario, and the respondent resides in New York. Part IV of the ISOA contemplates that a spouse resident in Ontario bringing a variation order proceeding against a spouse residing in a reciprocating jurisdiction (New York) may start a proceeding in Ontario that could result in a variation order being made in the reciprocating jurisdiction (ISOA, s. 27).

[25] The husband argues that New York has already ruled that a spousal support variation proceeding is res judicata in New York state, but it appears that the ISOA proceeding is essentially a spousal support variation proceeding in New York state. The Court requests submissions on whether there are reasonable grounds for proceeding with the ISOA application despite the New York Appellate Division’s ruling. This will likely require expert opinion evidence by a lawyer qualified to opine on New York law, and jurisprudence on the ISOA process in these circumstances.

[26] The husband argues that Ontario courts do not have jurisdiction to vary a support order made by a foreign court as corollary to a valid foreign divorce, and that a former spouse is not entitled to advance a support claim under the Family Law Act. Thus, the husband argues that the Ontario courts do not have jurisdiction to vary the foreign support order, or make a new support order in Ontario. The Court invites the wife to make submissions on these issues with specific reference to: Okmyansky v. Okmyansky, 2007 ONCA 427, Cheng v. Liu, 2017 ONCA 104, Rothgiesser v. Rothgiesser (2000), 2000 CanLII 1153 (ON CA), 46 O.R. (3d) 577 (CA). If the wife is putting the validity of the foreign divorce/corollary relief proceedings in issue, the Court requests submissions from the wife on the test for recognizing the validity of a foreign divorce as set out by the husband, with reference to Kadri v. Kadri, 2015 ONSC 321.

[27] The wife acknowledges significant child support arrears owing to the husband, and indeed in her factum states that she “seeks spousal support for herself and to use toward any ongoing and past child support which she owes.” In oral argument the husband estimated the amount owing at $20,000.00 USD, plus interest. The wife’s application record must set out the amount of child arrears owing, in the sworn financial statement, as this may be relevant to the determination of the abuse of process aspect of the CJA s. 140(4)(a) application. Any other amounts that courts have ordered the wife to pay that have not yet been paid, including outstanding costs awards, should be included in the financial statement at present day values, including interest. This would include costs awards in California and New York that have not yet been satisfied, if any.

[28] I have awarded costs fixed and payable within thirty days to the husband in the amount of $1,000.00 USD/$1,285 CAD for costs thrown away on today’s attendance (airfare and hotel). Proof of payment of these costs must be filed in the application record. The costs award of Justice Mesbur ($2,500 payable by July 16, 2015) is apparently outstanding; proof of payment of that costs award should also be filed if it is fulfilled prior to the return date of the application. These may be relevant to the abuse of process aspect of CJA s. 140(4)(a).

[29] The wife filed some evidence of disability and medical issues by way of letters from medical practitioners or other professionals attached to her affidavit on the motion. No medical records were filed on the motion. The wife should be prepared to indicate, with references to the case law or any relevant statutory provisions, why evidence of her present health would be relevant to an ISOA variation proceeding, if that is what she is pursuing. In oral argument today counsel for the wife indicated that she would be arguing material change in circumstances relating to spousal support. If this is the basis for the ISOA application, then proof of foreign law (how material change in circumstances would apply in the reciprocating jurisdiction) is required. If the wife is arguing that Ontario law would apply, then she must provide the appropriate authorities.

[30] Both parties are reminded of Family Law Rule 20.1. Any expert evidence (including evidence of foreign lawyers or health practitioners) must include a Form 20.1 acknowledgment of expert’s duty signed by the expert. Expert evidence shall be provided by way of an expert report attached to an affidavit, or an expert affidavit.

[31] Costs to the husband in the amount of $1,285 CAD fixed and payable within 30 days. I am seized of the matter, which is to be heard as a long application on April 24, 2018.

Justice Freya Kristjanson

Date: November 10, 2017