Court File and Parties
COURT FILE NO.: FS-15-400682 DATE: 20200804 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
E.T. Applicant – and – L.D. Respondent
Counsel: Martha McCarthy and Faria Soutter, for the Applicant Self-Represented, for the Respondent
HEARD: July 31, 2020
S. Shore, J.
Overview
[1] The respondent has filed motion materials for an urgent motion in which he seeks an order that the parties’ 14-year-old son be placed in his care and custody, and an order for a “follow-up hearing” during which the court would undertake a comprehensive review of this case and determine what orders are necessary. According to the respondent, this comprehensive review was ordered by Faieta J. on August 31, 2018 but has not yet taken place.
[2] Justice Akbarali is the assigned case management judge in this matter. As she is unavailable this week, in my capacity as co-team lead of the family team, and delegate of the Regional Senior Justice to deal with requests for urgent motions during the partial shut-down of the court’s operations due to COVID-19, I advised the parties that I would deal with the respondent’s request for an urgent motion. After reviewing the respondent’s materials, I asked the applicant for brief written submissions after which I would release my endorsement. After I provided my direction to the parties, the respondent filed additional affidavit material. The applicant provided her written submissions.
The Parties’ Positions
[3] The respondent alleges that the child is at risk due to the applicant’s failure to abide by public health guidelines regarding COVID-19. Consequently, he seeks an order that the child be placed in his care and custody. He also argues that the court has failed to hold the comprehensive review of the parties’ case that he states was mandated to occur by no later than February 1, 2019, by Faieta J. in his order of August 31, 2018 (which order also continued the suspension of the respondent’s parenting time). Finally, in his supplementary affidavit, the respondent claims that a hearing was “rigged”, and alleges that many people, including the applicant, her counsel, a judge and other professionals, participated in a conspiracy against him.
[4] The applicant submits that the respondent’s motion should be dismissed as frivolous and vexatious. She highlights that the respondent was found to be a vexatious litigant by Diamond J. in his endorsement dated July 5, 2019. The respondent’s pleadings were struck, and the applicant was given leave to proceed to an undefended trial. In those same reasons, Diamond J. concluded that the respondent was in contempt of eight orders of the court. Justice Diamond described the respondent as “ungovernable”.
[5] The applicant also submits that, despite Diamond J.’s ruling, the respondent continues to try to seek relief before this court, and that to the extent this motion deals with his request for care and custody of the parties’ 14-year-old child, it is almost identical to a motion he sought to bring in April 2020, and which Akbarali J. denied leave to proceed to a hearing.
[6] The applicant also argues that in arguing the effect of Faieta J.’s August 31, 2018 order, the respondent has excised relevant portions of the order. The respondent ignores those portions of the order that set out the respondent’s obligations in order to have his parenting time re-instated, none of which he has complied with.
[7] In her reasons dated January 24, 2019, arising out of a case conference that the respondent did not attend, Akbarali J. set out the history of this litigation in detail: 2019 ONSC 644. I will not repeat it here, except as I rely on her findings for the purpose of this motion.
[8] From her review of the history, Akbarali J. concluded that the respondent involved the children in the litigation in breach of court orders and to their significant detriment. She concluded that the respondent had little, if any, insight into his role into creating the conflict or its traumatizing effect on the parties’ children. She found that the litigation has been acrimonious, consisting largely of motions, often urgent or short-served. She wrote that “[m]uch of the “urgency” has been manufactured, in particular by the [respondent]”. She noted that despite tremendous judicial flexibility and attentiveness, little progress had been made in the litigation.
[9] Justice Akbarali made a series of procedural orders, including an order that no party be permitted to bring a motion without leave, granted by her, obtained at a case conference. Her procedural orders make it clear that she was concerned about ongoing misuse of the court’s resources, particularly by the respondent, and unnecessary costs incurred by the parties.
[10] Justice Akbarali held further case conferences with the parties on February 15, 2019 and on April 26, 2019. The respondent attended only the February 15, 2019 conference. At the April 26, 2019 conference, Akbarali J. granted leave to the applicant to bring a motion for a finding that the respondent was in contempt, and to bring a concurrent application for an order declaring the respondent to be a vexatious litigant. As I have noted, that motion and application were heard by Diamond J. in June 2019, and reasons released on July 5, 2019, granting the relief sought.
[11] Subsequently, as I have already noted, in April 2020, after the partial shut down of the court’s operations due to COVID-19, the respondent sought to bring an urgent motion for custody of the parties’14-year-old child on the basis that the applicant was not following public health guidelines and putting the child, who has a medical condition, at risk.
[12] In an endorsement dated April 27, 2020, Akbarali J. denied the respondent leave to proceed with his motion. On the basis of the applicant’s affidavit material, Justice Akbarali concluded that the applicant was following public health guidelines. She concluded that the respondent’s “urgent motion” was “more of the same”, finding that the respondent has a “history of manufacturing urgency to create disruption, with little or no attention paid to the best interests of the parties’ children”. She found that the respondent has “used the court process to create conflict, destabilize the family, and all this to the detriment of the children, without insight into his behaviour or remorse for the damage he has done to the children and the applicant”.
[13] It is within this context that I now turn my attention to the motion before me.
Analysis
[14] For the reasons set out below, I deny the respondent leave to bring his motion and I find that it is appropriate to strike the respondent’s notice of motion under rules 1(8) and 1(8.2) of the Family Law Rules.
Motion for Custody:
[15] First, to the extent that the respondent seeks an order for the care and custody of the parties’ 14-year-old child, he does so largely on the basis of the evidence that he raised in support of his urgent motion in April 2020, which Akbarali J. denied leave to proceed. The respondent is not entitled to another kick at the can. If he was unhappy with Akbarali J.’s reasons, his remedy was to seek leave to appeal her decision. He did not do so. He is not entitled to bring an almost identical motion based on an almost identical set of alleged facts.
[16] While the respondent has raised a few additional allegations in his recent materials, there is nothing in his materials that would justify having to make the applicant incur the costs of filing another (almost identical) affidavit. The primary objective, set out in r. 2(2) of the Family Law Rules, O. Reg. 114/99, requires the court to deal with cases justly. This includes, by r. 2(3)(b), saving expense and time, and by r. 2(3)(d), giving appropriate court resources to the case while taking account of the need to give resources to other cases. In circumstances where the respondent has been found to be a vexatious litigant and is relying on almost the same evidence that was already found by Akbarali J. not to warrant an urgent motion, it would be inconsistent with the primary objective to require an affidavit from the applicant. The applicant’s earlier affidavit evidence supports a conclusion that she is acting responsibly during the pandemic.
[17] Further, to the extent that the respondent has made a few new allegations, he relies on hearsay evidence, and/or does not provide the source of his information. The new allegations are not sufficient to warrant leave to bring his motion.
[18] I also note that the respondent seeks care and custody of the child without providing any evidence about his own living circumstances, or why his own circumstances would be appropriate for the child. He has not disclosed his address to the applicant. He maintains he cannot do so out of concern for his safety. This concern relates to his conspiracy theory, which I address below. Whatever the reason, the evidentiary basis to make a custodial order in favour of the respondent is, on its face, lacking, and particularly so in view of the history of this litigation and the findings that have been made by different judges of this court.
Motion for Review of Case:
[19] Second, to the extent the respondent seeks an order for a comprehensive review of this case, relying on Faieta J.’s order of August 31, 2018, it is important to review the actual order. Justice Faieta’s order continued a suspension of the respondent’s parenting and contemplated the completion of the Family Bridges program designed to address parental alienation. The court was concerned that the respondent was actively alienating the children from the applicant. Justice Faieta’s order does not require a “comprehensive review” as the respondent states. Rather, among other things, Faieta J. ordered that:
a. the suspension of the respondent’s access to the children will continue pending further court order and the completion of the Family Bridges Program; b. the resumption of contact between the respondent and the children would require the presence of a number of indicators, including, but not limited to, the requirements that the respondent has participated as required and complied with all instructions given by the aftercare worker assigned to him in the Family Bridges Program, and that there is no evidence that the respondent is communicating directly or indirectly with the children regarding this litigation; and c. within 30 days of the completion of the Family Bridges Program and the 90 day no contact period, but no later than February 1, 2019, the Applicant and the Respondent shall attend before the Court to review the circumstances of this case and to determine whether further orders need to be made.
[20] I note that, as set out in Akbarali J.’s endorsement of January 24, 2019, after August 31, 2018, the court continued to be involved in the parties’ litigation and re-evaluate the circumstances. On October 29, 2018, Faieta J. released a costs endorsement. Subsequently, on November 20, 2018, Faieta J. issued an endorsement clarifying an apparent contradiction in his decision of August 31, 2018. He also set February 1, 2019 as the return date of a long motion, to allow the family to first complete the Family Bridges program. Then, on December 6, 2018, Faieta J. issued a further variation of his August 31, 2018 reasons to continue the no contact order “until further order of the court”.
[21] Justice Akbarali was appointed case management judge by Stevenson J. in December 2018. On December 14, 2018, the respondent filed a short-served motion record for a motion returnable on December 20, 2018 seeking significant relief, including an order that all of Faieta J.’s orders be set aside.
[22] Justice Akbarali issued an endorsement noting that the relief sought was not straightforward, the motion had not been conferenced as required by the rules, and there was an unpaid costs award which, by endorsement of Faieta J., meant that the respondent was not entitled to further orders of the court until the costs award had been paid.
[23] As I have noted, Akbarali J. held case conferences on three occasions between January and April 2019, only one of which the respondent attended.
[24] At the January 18, 2019 case conference, which resulted in Akbarali J.’s January 24, 2019 endorsement, Akbarali J. made orders respecting the Family Bridges program, directing the respondent to contact a case worker to arrange his after care.
[25] I therefore conclude that, consistent with Faieta J.’s order that the court would “review the circumstances of this case and to determine whether further orders need to be made”, reviews of the parties’ circumstances took place and appropriate follow-on orders were made on multiple occasions after the August 31, 2018 order, and before the February 1, 2019 deadline set out by Faieta J.
[26] Moreover, it is apparent from the decisions of Akbarali J. dated January 24, 2019 and Diamond J. dated July 5, 2019, that the respondent has not met the conditions set out by Faieta J. in his August 31, 2018 endorsement which were required for parenting time to resume. The respondent continues, for example, to involve the children in the litigation. He never completed his after care with Family Bridges. In addition, he remains in breach of court orders, including court orders for support and costs, and court orders that he not contact the applicant directly. There is no evidentiary basis to indicate that the respondent has gained any insight into his behaviour, despite being given clear indication of what the court expects from him for parenting to resume in a way that is healthy for the children.
Conspiracy Allegations:
[27] Finally, I turn to the respondent’s conspiracy allegations. These allegations have been made multiple times before this court, and also before the Divisional Court.
[28] As Akbarali J. described in her January 24, 2019 endorsement, the respondent made his allegations of conspiracy before the Divisional Court in November 2018. In Divisional Court, he sought an extension of time to appeal three interlocutory orders made by Faieta J., a stay of those orders, directions, and an order appointing a lawyer for the children. In support of his request for relief, the respondent made allegations of collusion, partiality, and improper conduct. Justice Akbarali noted that the allegations before the Divisional Court were the same as those made in correspondence to her in December 2018.
[29] The Divisional Court denied the respondent’s requests for relief. In so doing, the Court concluded that the respondent had failed to satisfy the court of the merits of his proposed appeal from any of the orders in question and found that there was no good reason to doubt the correctness of any of the orders in question.
[30] The respondent repeated the allegations of collusion and improper conduct before Diamond J. at the motion to find the respondent in contempt and a contemporaneous application for a declaration that he is a vexatious litigant. Justice Diamond’s endorsement notes that the respondent sought an adjournment of the proceedings and leave to bring his own motion. Justice Diamond denied the request for the adjournment, and denied the respondent leave to bring his motion, noting that Akbarali J. had set out a detailed process by which a party could seek leave to bring a motion which the respondent had failed to follow. In so doing, Justice Diamond noted that the motion the respondent wanted to bring was one that he had “threatened to bring for months, if not arguably years”. He noted this was a motion based upon a conspiracy theory, the details of which were set out in Akbarali J.’s January 24, 2019 endorsement.
[31] Justice Diamond noted that, to the extent the respondent believed Akbarali J. had precluded him from bringing his motion, the respondent never sought leave to appeal the decision. In any event, Diamond, J. found that to the extent he maintained a discretion to adjourn the proceedings, there were no grounds on which he could or would have exercised such a discretion.
[32] Rather than defend the contempt motion or the application to have him declared a vexatious litigant, at which presumably he could have raised his conspiracy allegations and supported them with the evidence he states he has, the respondent chose to leave the courtroom. He declined to participate further in the proceedings.
[33] The conspiracy theory the respondent seeks to advance could have been advanced before, and has been advanced before without success, and without appeal. The Divisional Court found there was no good reason to doubt the correctness of the orders in question, notwithstanding the conspiracy theory advanced before it. The respondent has been threatening to bring a motion based on his conspiracy theory, and raising the conspiracy theory, since 2018. Yet he has taken no meaningful steps to do so. He did not even raise it in defence to the proceedings before Diamond J., although he did raise it in support of his request for an adjournment.
Decision to Dismiss the Motion:
[34] In light of my reasons set out above, and the history of the case before me, the respondent’s notice of motion is struck and the motion therefore dismissed, under rules 1(8) and 1(8.2) of the Family Law Rules.
[35] Rule 1(7.1) of the Family Law Rules states that “a court may make an order under subrule (7.2), (8), (8.1) or (8.2) at any time during a case, and the power to make such an order,
(a) is in addition to any other power to make an order that these rules may specify in the circumstances; and (b) exists unless these rules expressly provide otherwise. O. Reg. 69/15, s. 1 (1).”
[36] Rule 1(8) states that:
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,
(c) an order striking out any…notice of motion,…affidavit, or any other document filed by a party; (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; (emphasis added)
[37] Rule 1(8.2) states that:
The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process. O. Reg. 322/13, s. 1. (emphasis added)
[38] Justice Diamond already found the respondent to be a vexatious litigant. Both Diamond, J. and Akbarali, J. found the respondent to be in breach of court orders, which breaches have not been rectified. In addition, the motion is an abuse of the court process, given that the respondent brought an almost identical motion in April 2020 and was not granted leave to proceed with the motion.
Order:
[39] Notice of Motion struck. Motion dismissed.
S. Shore, J. Released: August 4, 2020
COURT FILE NO.: FS-15-400682 DATE: 20200804 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
E.T. Applicant – and – L.D. Respondent
REASONS FOR JUDGMENT S. Shore, J. Released: August 4, 2020