COURT FILE NO.: FS-19-13143
DATE: 20210406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Melissa Hart
Applicant
– and –
Kevin Fullarton
Respondent
M. Hart, Self-Represented
S. Benmor, for the Respondent
HEARD: March 16, 2021
O’Brien J.
REASONS FOR DECISION
Overview
[1] The trial judge dismissed the Applicant’s claim for spousal support and found her to be a vexatious litigant. Specifically, pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA), the trial judge ordered that the Applicant was not permitted to commence any further proceeding against the Respondent in any court except with leave of a judge of this court. The Applicant now seeks leave under s. 140(3) of the CJA to appeal the judgment of the trial judge dismissing her claim for spousal support. The issue on this motion is whether leave should be granted based on two considerations: (1) whether there are reasonable grounds for the appeal; and (2) whether the appeal is an abuse of process. For the reasons that follow, I dismiss the motion.
Background
[2] In her Reasons for Judgment dated November 5, 2020 (found at Hart v. Fullarton, 2020 ONSC 6804), the trial judge, Nakonechny J., dismissed the Applicant’s claim for spousal support on the basis that she was not a “spouse” as defined in Part III of the Family Law Act, R.S.O. 1990, c. F.3. The trial judge was not persuaded that the relationship between the Applicant and the Respondent was conjugal. She noted that the parties had highly divergent versions of the nature of and events in their relationship. She found that the Respondent was more credible and, where there was a conflict in the testimony, she accepted his evidence over the evidence of the Applicant.
[3] The trial judge went on to find that the Applicant was a vexatious litigant under s. 140 of the CJA. She reviewed various other proceedings commenced by the Applicant, as well as the history of the Application. She was “concerned that [the Applicant] may use further litigation as a means to punish the Respondent for the breakdown of the relationship and what she perceives to be his wrongs against her”: para. 80. In view of the numerous other proceedings the Applicant had initiated in this and other courts that have been found to be frivolous, vexatious and without merit, the trial judge found it appropriate to make an order under s. 140(1).
[4] Following the release of that decision, the Applicant attempted to seek a new trial and/or to pursue an appeal of the trial judgment. On December 16, 2020, the trial judge issued an endorsement in response to motion materials filed by the Applicant on five occasions (November 30 and December 3, 7, 14 and 15) “seeking leave for a new trial or alternatively to appeal the Judgment.” The trial judge noted that while her Reasons prevented the Applicant from commencing a further “proceeding” against the Respondent without leave, r. 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, defines a “proceeding” as an application, not an appeal. Therefore, she stated that the Applicant did not require leave from a judge of this court to commence an appeal of the trial decision.
Divisional Court
[5] However, when the Applicant then sought to appeal the trial judgment to the Divisional Court, Corbett J. found that she was required to seek leave pursuant to s. 140(3) of the CJA. Corbett J. stated in his endorsement (found at Hart v. Fullerton, 2021 ONSC 263 (Div. Ct.)), that “[a]n appeal to this court is a ‘proceeding’ for the purposes of the CJA s. 140(3). To obtain leave to institute that proceeding, Ms. Hart must bring an application for leave to the Superior Court of Justice”: para. 4. Corbett J. also indicated that the Applicant had failed to copy counsel for the Respondent in her communication with the Divisional Court. It appears that the Divisional Court was not provided with the endorsement of Nakonechny J. dated December 16, 2020. The Applicant then brought this motion before me seeking leave to commence or continue a proceeding.
Procedure in this Hearing
[6] Before turning to the issue before me, I note that it did not proceed in accordance with the appropriate procedure. Subsection 140(3) of the CJA requires the Applicant to seek leave by way of an application. The Applicant here is unrepresented and brought this matter before me by way of a motion, using the court file number of her dismissed Application. It appeared on my regular motions list in spite of the provisions of r. 38.13 of the Rules of Civil Procedure, which state that an application under s. 140(3) should be heard in writing, without the attendance of the parties, unless the court orders otherwise. Rule 2(2) of the Family Law Rules, O. Reg. 114/99, provides that the primary objective of the rules is to enable the court to deal with cases justly. Pursuant to r. 2(3), I decided that it was consistent with the primary objective to adopt a procedure that would address the essential matter at issue without adjourning for the material to be filed in the proper format. I therefore heard oral submissions from the parties and considered the Applicant’s written submissions. The Respondent did not provide any written submissions.
Issue
[7] The sole issue before me is whether leave should be granted pursuant to s. 140(4) of the CJA allowing the Applicant to bring an appeal of the trial judgment. In determining that issue, I must consider whether the Applicant has shown that there are reasonable grounds for the appeal and that the appeal is not an abuse of process.
Analysis
[8] I have concluded that leave should not be granted. While I do not find the proposed appeal to be an abuse of process, the Applicant has not shown reasonable grounds for bringing the appeal.
A. [Courts of Justice Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html), s. 140(4)(a)
[9] Pursuant to s. 140(4) of the CJA, the court shall only grant leave to institute or continue a proceeding in limited circumstances. Specifically, s. 140(4) contains a “double-barrelled” test. The applicant must satisfy the court that the proceeding is not an abuse of process and that there are reasonable grounds for it: Ferenczi v. State Farm Mutual Automobile Insurance Co., 2004 34802 (Ont. S.C.), at para. 17. Paragraph 140(4)(a) provides:
(a) 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 the proceeding.
[10] The purpose of the court’s supervisory role where a vexatious litigant order has been made is to ensure that the person has a genuine reason for recourse to court. The role of the court was explained by Nordheimer J. (as he then was) in Chavali v. Law Society of Upper Canada, 2005 53071 (Ont. S.C.), at para. 17:
The inclusion of such a provision recognizes that, notwithstanding that a person has conducted litigation in a vexatious manner in the past, he or she must still have the opportunity to demonstrate that they have a legitimate need to have recourse to the courts. However, unlike the regular process where a person may commence a proceeding as of right, in the case of a vexatious litigant, the court adopts a supervisory role to ensure that such persons may only resort to the courts where the court is satisfied that the person has a genuine reason or need to do so.
[11] Vexatious litigant orders are particularly relevant in family law proceedings due to the availability of variation orders and the concern that initiating new court proceedings could become a form of harassment against a former spouse: see Ballentine v. Ballentine (2003), 2003 27775 (ON CA), 65 O.R. (3d) 481 (C.A.), at para. 39. As set out by the trial judge in this case at para. 81: “Family law cases are stressful, emotional and costly for all parties. No one involved benefits from protracted or repeated litigation.”
B. Has the Applicant established that there are reasonable grounds for the appeal?
[12] In my view, the Applicant has failed to show that there are reasonable grounds for the appeal. The onus is on the Applicant to show a basis for her proposed appeal. In Lindhorst v. Centennial College, 2016 ONSC 2678, Spies J. wrote at para. 4 that “the test is not whether the applicant has a conceptually arguable case. The applicant must proffer evidence and not mere allegations to support the proposition that there is an evidentiary basis for the relief claimed in the proposed proceeding.” Spies J. went on to find that the applicant in that case had not persuaded her that there were reasonable grounds or a prima facie case for the proposed action.
[13] In this case, given that the Applicant is pursuing an appeal, the question is not whether there is an evidentiary basis for her proposed proceeding. However, I am not satisfied that there is a reasonable or prima facie basis for the appeal.
[14] First, part of the Applicant’s argument before me was that she sought to introduce new exhibit evidence that she had not submitted at trial. I have reviewed this evidence and it does not appear to meet the test for admitting fresh evidence set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759. It consists of, for example, a letter dated November 2020 from an individual who states she has known the Applicant and her family for 25 years. The writer advises that she hosted a dinner party for and attended other gatherings with the Applicant and Respondent. The Applicant also seeks to admit an undated Christmas card addressed to the Applicant and Respondent. There is no suggestion that this evidence could not have been obtained for trial. In any event, in my view, this evidence could not reasonably be expected to have affected the result of the trial.
[15] Second, the Applicant’s materials on the motion before me not only fail to point to any error in the decision of the trial judge, they do not reference the trial judge’s decision at all.
[16] Third, the issue before the trial judge was highly fact driven. The trial judge was required to apply the facts of the parties’ relationship to the relevant factors in Molodowich v. Penttinen (1980), 1980 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), to determine whether they were spouses. In order to make her determination, the trial judge was required to assess the parties’ credibility. The Applicant has not pointed to any basis on which an appellate court might interfere with the trial judge’s findings of fact nor application of those facts to the relevant test.
[17] Overall, the appeal is fundamentally the Applicant’s attempt to re-try her Application. As set out in the December 16, 2020 endorsement of Nakonechny J., the Applicant brought numerous motions “seeking leave for a new trial or alternatively to appeal the Judgment.” In the materials before me, the Applicant did not clearly state the nature of the proceeding she wished to institute or continue; however, in oral submissions, the Applicant made reference both to seeking a new trial and an appeal. The Applicant’s factum and motion record restate her arguments at trial.
[18] I appreciate that as a self-represented litigant, the distinction between these processes may not be entirely clear to the Applicant. Nonetheless, on review of her motion material, it is clear that she is attempting to re-argue the trial. She has not met the onus to show reasonable grounds for her proposed appeal.
C. Has the Applicant established that the appeal is not an abuse of process?
[19] Although this is sufficient to dispose of the motion, I will go on to consider the other part of the s. 140(4)(a) test. While I am concerned that the proposed appeal has an element of harassment, I do not find it is an abuse of process in all of the circumstances.
[20] In addition to having been involved in several other legal proceedings in other matters, as described by the trial judge, the Applicant took a concerning approach to accessing the court for the purpose of her Application. For example, from March to June 2020, the Applicant made three attempts to bring an urgent motion and one to bring an urgent case conference, none of which were found to meet the test for urgency. After the trial, the Applicant filed motion materials on five dates seeking leave for a new trial or to appeal the trial judgment.
[21] Further, it was undisputed at trial that the Applicant was convicted of assault against the Respondent, then convicted and found guilty of nine counts of failing to comply with the terms of her recognizance. She is subject to two years of probation and ordered to have no contact with the Respondent.
[22] While this background raises concerns about the nature of and motivation behind the Applicant’s appeal, overall I find that the proposed appeal is not an abuse of process. This is the Applicant’s first attempt to appeal the trial judgment, a step she otherwise would be permitted to take. Further, in her endorsement of December 16, 2020, Nakonechny J. suggested such an appeal was permitted. In these circumstances, I find that the Applicant has shown that her proposed appeal is not an abuse of process. Nonetheless, as the test is conjunctive and she has not met both steps, leave is not granted.
[23] Finally, I have considered whether the Applicant should be permitted to proceed with the appeal on the basis of the December 16, 2020 endorsement of Nakonechny J. indicating that she was entitled to do so in spite of the s. 140(1) order. The subsequent endorsement of Corbett J. clarified that the Applicant could not appeal as of right and was required to first seek leave from a judge of this court. There is a long line of authority providing that, as stated by Corbett J., s. 140 of the CJA prevents appeals without leave: see, for example, Kalaba v. Bylykbashi (2006), 2006 3953 (ON CA), 265 D.L.R. (4th) 320 (Ont. C.A.), at para. 26; Varma v. Rozenberg, 1998 4334 (Ont. C.A.), at para. 5; and Vermette v. Nassr, 2016 ONCA 658, at para. 5. It appears these authorities were not before Nakonechny J. when she issued her endorsement. I read Nakonechny J.’s endorsement as setting out her understanding of the meaning of “proceeding” under the Rules of Civil Procedure. I do not read it as intending to provide the Applicant with a right of appeal that she did not otherwise have.
Disposition
[24] The motion by the Applicant for leave pursuant to s. 140(4) of the CJA is dismissed.
Costs
[25] At the hearing of the motion, the Respondent submitted that, if successful, he would seek costs in the amount of $2,500. The Applicant submitted that those costs were excessive given that the Respondent did not prepare any materials. Counsel for the Respondent did not have a bill of costs. Pursuant to r. 24 of the Family Law Rules, the successful party is presumed to be entitled to costs. While the Respondent did not prepare responding materials or a factum, his counsel did attend the hearing, although he should not have been required to do so under the r. 38.13 procedure. In my view, costs to the Respondent in the amount of $1,500 is fair and reasonable to reflect his participation at the hearing without having prepared any written material. I therefore award costs to the Respondent of $1,500 payable by the Applicant within 30 days.
O’Brien J.
Released: April 6, 2021
COURT FILE NO.: FS-19-13143
DATE: 20210406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Melissa Hart
Applicant
– and –
Kevin Fullarton
Respondent
REASONS FOR JUDGMENT
O’Brien, J.
Released: April 6, 2021