Court File and Parties

COURT FILE NOS.: FS-15-400682/CV-19-00618979-0000 DATE: 20190705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

E.T. Applicant – and – L.M.D. Respondent

Counsel: Martha McCarthy and Faria Marlatt, counsel for the Applicant Self-represented

Heard: June 11, 2019

Endorsement

DIAMOND J.:

Overview

[1] Pursuant to the Endorsements both dated January 18, 2019 of (a) Justice Akbarali (the acting case management judge overseeing this proceeding), and (b) Justice Stevenson, I have been assigned to hear all motions in this family litigation.

[2] In a case conference Endorsement dated April 26, 2019, Justice Akbarali scheduled the applicant’s motion to proceed before me on June 11, 2019. That motion sought the following relief:

(a) an order finding the respondent in contempt of eight separate court orders; and,

(b) as a remedy for his alleged contempt, an order striking the respondent’s pleadings and ordering the respondent to pay to the applicant the sum of $55,552.19 for expenses relating to an aborted attempt to participate in the Family Bridges Program.

[3] In addition to the above relief, the applicant also commenced an application under section 140 of the Courts of Justice Act R.S.O. 1990 c. C. 43 seeking an order (a) declaring the respondent to be a vexatious litigant and (b) precluding him from taking any further steps in this proceeding, or instituting any further proceeding in any court without obtaining leave of a Judge in the Ontario Superior Court of Justice, subject to one specific civil proceeding (more fully described hereinafter).

[4] Justice Akbarali ordered that the applicant’s section 140 application be heard together with and at the same time as her motion. Both the motion and the application proceeded before me on June 11, 2019. At the outset of the hearing, the respondent requested an adjournment of both the motion and the application to permit him the opportunity to “schedule an urgent motion to address the issues surrounding the children of the marriage.” For oral reasons given that day (and summarized below), I rejected the respondent’s request for an adjournment. Once I advised the respondent of my decision to refuse his request, he abruptly left the courtroom and did not participate any further in the hearing.

[5] Notwithstanding the respondent’s decision to leave the courtroom, I advised counsel for the applicant that the onus of satisfying the Court that the relief sought on both the motion and the application solely rested with the applicant. I then heard submissions from counsel for the applicant, and took my decision under reserve.

[6] For the reasons which follow, I have granted both the applicant’s motion and application.

The respondent’s request to adjourn

[7] While the specific reasons for denying the respondent’s request for an adjournment are contained in my oral reasons delivered on June 11, 2019, I wish to briefly summarize both the respondent’s position and my decision.

[8] On February 15, 2019, Justice Akbarali presided over a case conference. Both counsel for the applicant and the respondent (in person) were present. Justice Akbarali found that the respondent had not complied with her previous direction that all briefs be filed in advance of case conferences. Justice Akbarali ordered the respondent to pay the applicant’s costs thrown away for the case conference (and a prior attendance) in the amount of $4,500.00.

[9] A further case conference was scheduled on April 26, 2019 before Justice Akbarali. This attendance was in fact originally scheduled by the respondent. The respondent in fact did not attend the April 26, 2019 case conference before Justice Akbarali.

[10] In his submissions made to me, the respondent indicated that the April 26, 2019 case conference was to be rescheduled on consent of the parties to a further date in early May 2019. In reading the exchange of correspondence between counsel for the applicant and the respondent, it was clear that there was never any agreement between the parties to reschedule the case conference. In the respondent’s absence, Justice Akbarali scheduled the applicant’s motion and application to proceed before me on June 11, 2019 with a corresponding timetable for interim steps leading up to the hearing.

[11] In any event, the motion which the respondent wished to pursue in advance of the hearing of the applicant’s motion and application is a motion which the respondent has threatened to bring for months, if not arguably years. It is a motion based upon a conspiracy theory, the details of which I do not have to repeat here as they are sufficiently set out in Justice Akbarali’s Endorsement of January 18, 2019.

[12] As the case management judge, Justice Akbarali created a system for the purpose of scheduling any further conferences and motions. The respondent did not comply with the rules of engagement set by Justice Akbarali.

[13] As the judge assigned to hear motions, while I have an inherent jurisdiction to control any motions before me, the right to proceed with any motion is substantively reserved for Justice Akbarali’s determination. She ordered that the applicant’s motion and application proceed together, and denied the respondent’s request. To the extent that the respondent believed that Justice Akbarali’s decision precluded him from bringing his motion before the applicant’s motion and application were heard (or from bringing it at all), the respondent never sought leave to appeal from Justice Akbarali’s decision, and the time for doing same has now long since expired.

[14] This proceeding has been languishing for approximately four years, and as set out below, the respondent remains in significant breach of numerous court orders. To the extent I maintained a discretion to adjourn the applicant’s motion and application as scheduled by Justice Akbarali, there were no grounds upon which I could or would have exercised such a discretion and the respondent’s request to adjourn was refused.

Summary of Relevant Facts

[15] In her Endorsement dated January 18, 2019, Justice Akbarali made and summarized numerous findings of fact setting out the history of the respondent’s breaches of numerous court orders. The highlights (and I hesitate to use that term) of this history include the following:

• Apart from two payments of $3,000.00 each, the respondent has not paid any child support in over two years;
• There are numerous cost orders which remain unpaid by the respondent;
• Despite repeated orders and directions from several judges who have presided over conferences and motions in this proceeding, the respondent has consistently involved the children of the marriage in this litigation in every chance he could, all to the significant detriment of the children. The father has consistently denigrated the applicant in front of the children, and communicates with the children outside the time frames permitted in numerous court orders;
• The respondent has failed to return any of the children’s cell phones to the applicant in breach of at least three orders of Justice Faieta (who had seized himself of this proceeding before Justice Akbarli’s appointment);
• The respondent abandoned and undermined the parties’ participation in the Families Moving Forward intake process in breach of Justice Faieta’s order dated August 3, 2017; and,
• The respondent (a) refused to commence counselling with a therapist, and (b) failed to participate with aftercare professionals in the Family Bridges Program, all as mandated by Justice Faieta in his Order dated August 31, 2018; and,

[16] Justice Akbarali also noted countless steps by the respondent to revisit decisions made by the court by either pursuing appeals, bringing motions to stay, or simply re-litigating the same issue(s) again. Despite being unsuccessful in those efforts, the respondent still attempted in December 2018 to bring a motion to set aside all of the orders made by Justice Faieta as the previous case management judge.

[17] I note that none of Justice Akbarali’s above findings were made in the context of a contempt motion and/or a section 140 application. While leave to appeal from Justice Akbarali’s Endorsement dated January 18, 2019 was not pursued or obtained, given the scope and seriousness of the relief sought by the applicant on her motion and application, I did not find it appropriate to simply rely upon findings of fact made or summarized by Justice Akbarali for the purposes of issue estoppel or res judicata. While I have no reason to doubt the correctness or appropriateness of the findings of fact made by Justice Akbarali, for completeness of the record I have reviewed the Continuing Record with a view to assuring myself that the evidence set out therein is wholly supportive of the findings of fact made by Justice Akbarali. Based upon my review, I was left with the exact same conclusions as Justice Akbarali, and adopt her findings of fact as my own for the purposes of the applicant’s motion and application.

[18] The respondent’s breaches of court orders did not end in the face of Justice Akbarali’s findings of fact. In her Endorsement dated February 15, 2019, Justice Akbarali ordered the applicant to provide an updated, sworn financial statement with supporting documentation along with bank statements and credit card statements from October 2016 onward, all to be delivered by March 15, 2019. The respondent did not do so, and based upon his email correspondence with counsel for the applicant, it is apparent that he never had any intention of doing so.

[19] In addition to failing to comply with numerous court orders, the respondent has also brought five, separate private criminal charges in relation to this family proceeding, each time coinciding with the applicant obtaining an order favourable to her interest. These private charges including criminal proceedings against the applicant, counsel for the applicant, and the family’s private counsellor. As part of those private charges, the respondent has also issued summonses to witnesses to the above individuals, therapists, judges and social workers.

Contempt of Court

[20] Rule 31(1) of the Family Law Rules permits a party to enforce court orders (other than an order for the payment of money) by a contempt motion, even if another penalty is available.

[21] In the event a party is found to be in contempt, the Court possesses a broad discretion in fashioning the appropriate remedy. Rule 31(5) of the Family Law Rules specifically provides as follows:

“If the court finds a person in contempt of the court, it may order that the person,

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.”

[22] As held by Justice McWatt in A.G.L. v. K.B.D., 2009 ONSC 14788, holding a party in contempt requires the court to make the following findings:

(a) the relevant order must be clear and unambiguous and not subject to interpretation (as implied terms cannot be read into the order);

(b) the respondent must know of the order's existence at the time of the alleged breach;

(c) the respondent intentionally did, or failed to do, anything that was in contravention of the order. The act stated to constitute the contempt must be willful and not accidental;

(d) the contempt must be proven beyond a reasonable doubt; and,

(e) the respondent was given proper notice of the terms of the order.

[23] On the record before me, I have no hesitation in concluding that the applicant has proven the first, second and fifth elements of the relevant test. The terms of the orders in question were not only clear and unambiguous, but were explicitly repeated to the respondent in an effort to ensure that he not only understand the obligations being placed upon him, but the extent of the jeopardy he could face should he fail to comply with those orders. I agree with the applicant that many of the terms of those orders contained ‘judicial warnings” based upon the respondent having previously disregarded court orders, including the obligation not to discuss the litigation with the children, not to disparage the applicant in the presence of the children, and to comply with the access regime agreed upon the parties.

[24] There is no evidence tendered by the respondent on this motion to indicate that he failed to understand any of the terms of the subject orders. He obviously knew of the existence of the orders, and was given proper notice of their terms.

[25] As such, a finding that the respondent is in contempt is essentially dependent upon proof beyond a reasonable doubt that he deliberately and willfully breached the court orders. The respondent’s brief affidavit filed in response to the applicant’s motion and application sets out his reasons for requesting the adjournment, and a brief recitation of his conspiracy theory.

[26] This Court has found the respondent to be in breach of multiple prior orders. In his Reasons dated March 21, 2018, Justice Faieta explicitly held that the respondent had “repeatedly and blatantly disregarded this court’s orders that he not discuss this litigation with the children and that he not disparage the applicant in their presence.”

[27] In his continuing Endorsements dated June 1, 2018 and August 10, 2018, Justice Faieta found the respondent to have failed to comply with numerous court orders, including child support obligations and payment of costs.

[28] In her reasons dated November 16, 2018 dismissing the respondent’s motion for a stay to the Divisional Court, Justice Sachs held that the respondent “is someone who has wilfully breached a number of court orders.”

[29] In her Endorsement dated January 24, 2019, Justice Akbarali drew the following conclusions from her review of the file up to that point:

“From the foregoing history of this proceeding, I draw the following conclusions:

(a) The father remains in breach of this court’s orders. Apart from two payments of $3,000, the father has paid no support in over two years. The costs orders remain unpaid. The father has involved the children in the litigation at every chance he has had, in breach of many orders of this court, and to their significant detriment.

(b) The father appears to have little, if any, insight into his role in creating the conflict, or its traumatizing effect on the children.

(c) The litigation to date has been acrimonious, consisting largely of motions, often urgent or short-served. Much of the “urgency” has been manufactured, in particular by the father. The usual process of conferencing motions before bringing them has been almost entirely abandoned.

(d) A significant amount of court resources have been dedicated to this proceeding, with many judges stepping outside the usual processes to accommodate the needs of this family, and particularly the father, in no small measure due to the obvious concerns involving the children. However, despite tremendous judicial flexibility and attentiveness, little progress has been made.”

[30] At the conclusion of that Endorsement, Justice Akbarali explicitly found the respondent to remain in serious breach of multiple court orders, and cautioned the respondent that if he continued to flout those court orders, the Court would consider whether it would be appropriate to use “the Court’s other powers to compel his compliance.” Those “other powers” include Rule 31(1) of the Family Law Rules.

[31] While a finding of contempt in a family law proceeding ought to be made sparingly and as a last resort, in my view Justice Akbarali’s comments serve as a clear foreshadowing to the respondent, that, given this Court’s repeated admonishment of his non-compliance, there were few options left to the applicant other than proceeding with a contempt motion.

[32] The applicant relies upon the decision of Justice Curtis in Peers v. Poupore, 2012 ONCJ 306 in support of her position that the respondent deliberately and wilfully breached the court orders:

“Recklessness can provide the necessary intent to disobey a court order and for a finding of contempt to be made. Wilful intent or malice, i.e. a deliberate intent to defy an order, is not necessary to establish a civil contempt, though its existence may be relevant to penalty. It is enough that a party knew of the terms of the order and intended to do those things that constitute the breach…

A finding of contempt does not require that the defendant intended to disobey or flout an order of the court: “the offence consists of the intentional doing of an act which is in fact prohibited by the order. The absence of the contumacious intent is a mitigating but not an exculpatory circumstance”…

The standard of intention is knowledge of the reasons for the order and contravention of the order. Direct intention to disobey the order is not required. Wilful disregard is sufficient. “Wilful” is intended to exclude only casual, accidental or unintentional acts of disobedience…

An individual need not be found in breach of a specific term in a court order. It is sufficient if the actions are “designed to obstruct the course of justice by thwarting or attempting to thwart a court order…”

[33] While recklessness may serve as a basis to prove intent to disobey an order, on the record before me I am convinced beyond a reasonable doubt that the respondent wilfully and deliberately chose not to comply with the subject court orders. I base my conclusion not only upon the various findings and observations made by my colleagues during the history of this proceeding, but upon my own review of the evidentiary record.

[34] No terms imposed by this court seem to have had any impact upon the respondent’s misguided approach to this litigation. He is, simply put, ungovernable. His decision to persistently involve the children in this litigation not only fails to take their best interests into account, but amounts to a brazen and wanton breach of the subject court orders. The respondent has repeatedly contacted (directly and indirectly) the children of the marriage, sometimes within hours of the issuance of court orders demanding that he refrain from such conduct. The respondent has communicated directly with the applicant despite being prohibited from doing so by Justice Faieta. The respondent has failed to comply with any court-ordered support payment obligations other than two payments made several years ago. The respondent has failed to return the children’s electronic equipment (cell phones, laptops, etc.).

[35] On the record before me, there is no other conclusion available other than the respondent deliberately and wilfully breached the subject court orders. I thus find, beyond a reasonable doubt, that the respondent is in contempt of the following:

• Paragraph 3 of the Order dated January 13, 2017 of Justice Harvison-Young (as she then was);
• Paragraphs 1 and 2 of the Order dated June 29, 2017 of Justice Ferguson.
• Paragraph 7 of the Order dated July 18, 2017 of Justice Faieta.
• Paragraph 1 of the Order dated August 3, 2017 of Justice Faieta.
• Paragraphs 2 and 3 of the Order dated March 15, 2018 of Justice Faieta.
• Paragraphs 2, 3 and 4 of the Order dated March 29, 2018 of Justice Faieta.
• Paragraphs 3, 6, 7, 15, 16 and 20 of the Order dated August 31, 2018 of Justice Faieta; and,
• Paragraph 4 of the Case Conference Endorsement dated February 15, 2019 of Justice Akbarali.

Remedy

[36] As stated above, there are many potential remedies available to the Court once a contempt finding is made. Despite originally seeking payment from the respondent of the sum of $55,552.19 for expenses relating to an aborted attempt to participate in the Family Bridges Program, at the conclusion of the hearing, counsel for the applicant agreed with my observation that the potential recovery of that sum would be best left as a post-separation adjustment to be determined at trial. As such, the only remedy ultimately sought by the applicant is an order striking the respondent’s pleadings, which is in fact a remedy available under Rule 1(8) of the Family Law Rules.

[37] In my view, there is no point permitting the respondent a further opportunity to purge his contempt of the above orders. A fine or incarceration would serve no utility in the circumstances, and such proposed sanctions would most likely be ineffective and inefficient. The applicant’s costs of this proceeding have been needlessly increased by the respondent’s conduct, and frankly, I see no point in risking further judicial resources being wasted.

[38] As held by the Court of Appeal for Ontario in Manchanda v. Thethi, 2016 ONCA 909, when breaches and non-compliance occur in the context of extensive case management (especially in the face of continuous admonitions by the Court), such non-compliance is egregious, exceptional, and warrants a party losing their standing by reason of their pleadings being struck.

[39] The respondent’s contempt has been ongoing for over two years, resulting in significant harm to the applicant (both financially and emotionally) and to the children. The respondent has shown no remorse, and has in fact “doubled down” in his efforts to involve the children in this litigation. Nothing is likely to slow the respondent in his attempts to advance a conspiracy theory about the wrongdoings he believes he has suffered in this proceeding at the hands of parties, non-parties and judges.

[40] The appropriate remedy is the striking of the respondent’s pleadings, and I order the respondent’s Answer to be struck accordingly. The applicant may thus contact the family scheduling office to set an uncontested trial date.

Vexatious Litigant

[41] Under section 140(1) of the Courts of Justice Act, where a judge is satisfied that a person has persistently and without reasonable grounds (a) instituted vexatious proceedings in any court or (b) conducted a proceeding in any court in a vexatious manner, the judge may order that no further proceeding be instituted by that person in any court, or that a proceeding previously instituted by that person in any court not continue except with leave of a judge of the Superior Court of Justice.

[42] As recently held by Justice Schreck in Golfnorth Properties Inc. v. Vacca, 2018 ONSC 3174:

“The caselaw respecting vexatious litigant applications reflects that a primary concern is preventing the misuse of judicial resources. This can be seen in the list of characteristics commonly associated with vexatious litigants that was described in Re Lang Michener et al. v. Fabian et al. (1987), 59 O.R. (2d) 353 (H.C.), which was recently affirmed in Van Sluytman v. Orillia Soldiers’ Memorial Hospital, 2018 ONCA 32, at para. 23:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings 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;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.”

[43] No doubt the Court must be cognizant of its duty to balance a party’s right to access to justice against the other party’s right to be protected from the consequences flowing from an offending party’s conduct. On my review of the record, the respondent meets the definition of a vexatious litigant. Many of my colleagues have already commented on the lengths that the respondent has gone to not only avoid his court-ordered obligations, but pursue unattainable remedies based upon a conspiracy theory that appears to stretch the boundaries of reality. The respondent has commenced civil and criminal proceedings against the applicant, her lawyers, judges and other professionals. He has brought and then abandoned motions and appeals, and often short-served (or, on occasion, failed to serve) the applicant in pursuit of those steps.

[44] Several judges have commented upon the respondent’s attempts to re-litigate issues which have already been decided against him. I agree with the applicant that the respondent has exhibited a total disregard for the Court and its resources.

[45] I find the respondent to be a vexatious litigant, and preclude him from continuing in this proceeding, or continuing/instituting other proceedings without leave of a judge of the Ontario Superior Court of Justice. I agree with the applicant that there should be one exception carved out of this order, namely the respondent’s ongoing litigation against the Toronto Real Estate Board (known as Dale et al v. Toronto Real Estate Board et al, Court File No. CV-09-374829). This civil proceeding was commenced many years ago, well before this family litigation began, and has been found to have merit when a motion for summary judgment seeking an order dismissing the respondent’s claims was dismissed in 2012. As such, the respondent is permitted to proceed with that civil proceeding.

Costs

[46] The applicant has been successful on her motion and application, and subject to hearing from the respondent, ought to be entitled to payment of her costs. If the parties cannot agree upon the costs of the motion and application, they may exchange and file written costs submissions (totaling no more than five pages including a Costs Outline) in accordance with the following schedule:

(a) the applicant may serve and file her costs submissions within 10 business days of the release of this Endorsement; and

(b) the respondent shall thereafter have an additional 10 business days from the receipt of the applicant’s submissions to file his own costs submissions.

Diamond J. Released: July 5, 2019