COURT FILE NO.: FS-19-9906

DATE: 20210923

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer Dixon

Applicant

– and –

Peter Lindsay

Respondent

Self-represented

Stephen Codas, Sarah Strathopoulos and Rachel Hill, for the Respondent

HEARD: September 23, 2021

Papageorgiou J

REASONS FOR DECISION

1. The Respondent Peter Robert Lindsay (“Peter”) has brought a motion to consolidate a civil proceeding brought by the Applicant Jennifer Dixon (“Jennifer”) with this proceeding. He then seeks an order striking out the consolidated proceeding and/or dismissing the Applicant’s claims and an Order directing an uncontested trial.

2. In the alternative, he seeks an Order that Jennifer shall not be permitted to any further Order or relief pending compliance in full with all court orders including: i) the Order of Justice Diamond dated January 30, 2020, the Order of Justice Kitely dated November 24, 2020 and the Order of Justice Kitely dated February 23, 2021.

3. For the reasons that follow, I am consolidating the two proceedings, striking her claims and directing that this matter proceed to an uncontested trial.

Family Law Proceeding

4. Peter works as a criminal lawyer through his own practice. Jennifer works as a human rights advisor for the Ontario Ministry of Health.

5. Jennifer and Peter began cohabiting during the fall of 2016 and were married on October 7, 2017. The separated on June 23, 2018--8 months later.

6. In this proceeding she seeks an unequal division of the net family property despite the fact that Peter purchased the matrimonial home with his own funds prior to marriage and gifted a 50 % beneficial interest to her. She also seeks spousal support at the high range of the SSAGs even though they cohabited for 19 months, they have no children and Jennifer has continued to work in the same position as she did before their relationship. She also seeks a restraining order.

Civil Claim for Defamation

7. In the Civil Proceeding, she seeks damages in an unspecified amount for malicious prosecution and defamation related to criminal charges pursued by the Crown against her when she physically attacked Peter and was arrested and charged.

8. The charges were eventually withdrawn by the Crown. This was not because the Crown determined that there was no reasonable possibility of conviction. Rather, Peter had been content to have a limited peace bond put in place which Jennifer would not agree to. When the time for that peace bond would have expired, the Crown concluded that there was no longer any public interest in pursuing the charge.

Materials Before Me for the Motion

9. This long motion has been scheduled for some time. Jennifer was required to file responding material by June 18, 2021 pursuant to Justice Hood’s Order dated April 7, 2021. She did not despite many promises to do so.

10. Peter served her in accordance with Justice Hood’s Order.

11. Yesterday Peter served her with the Confirmation form and the draft Order that he would be seeking. She did not respond.

12. I opened court at 10:00 am. Jennifer did not appear. I instructed counsel to email Jennifer and tell her that the motion was proceeding and we adjourned until 10:30 to give her an opportunity to appear.

13. When we resumed at 10:30 she was still not in attendance.

14. The motion proceeded in her absence.

Consolidation Motion

15. Rule 12(5) of the Family Law Rules provides that if "it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly.”

16. Rule 12 of the Family Law Rules is analogous to Rule 6 in the Rules of Civil Procedure. Both rules consider combining proceedings. Rule 6.01(1) of the Rules of Civil Procedure provides that where "two or more proceedings are pending in the court and it appears to the court that, (a) they have a question of law or fact in common; (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or the proceedings be consolidated, or heard at the same time."

17. The rationale of Rule 12 and Rule 6 is to avoid the risk of inconsistent rulings if different Justices deal with the same or similar issues in different proceedings. Further, the Family Court judges are judges of the Superior Court and have jurisdiction to hear civil matters. So long as the proceedings are related, there is no jurisdictional issue to trying a family law application and a civil action together.

18. In deciding whether to consolidate proceedings, the court will consider the following non-exhaustive factors:

a. The extent to which the issues in each action are interwoven;

b. Whether there is a risk of inconsistent findings or judgments if the actions are not joined;

c. Whether there is expected to be a significant overlap of evidence or of witnesses;

d. Whether the issues in one action are relatively straightforward compared to the complexity of the other action;

e. Whether a decision in one action, if kept separate and tried first, would likely put an end to the other actions or significantly narrow the issues for the actions or significantly increase the likelihood of settlement;

f. The litigation status of each action;

g. Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.

Canadian National Railway v. Holmes, 2011 ONSC 4837, at para 44

19. In Malkov v. Stovichek-Malkov, 2015 ONSC 4836, at para 15, the court applied these factors in considering whether to combine a support and custody proceeding with a proceeding about ownership of the matrimonial home. The Court found that it was in the interests of justice to combine the cases – "the balance of convenience favours an order to combine" – based on the following:

(a) the dispute over ownership of the home raised the same issue as the support and custody issue, with the same evidence to be led;

(b) there was a risk of inconsistent judgements;

(c) though the family law case is more complex because it had more issues, the question of ownership of the home is an isolated issue;

(d) having two proceedings may frustrate the goal of having family law disputes resolved in a timely manner (this is important when custody, access, and support are involved);

(e) both proceedings in beginning stages; and

(f) with two proceedings, there are duplicate legal fees.

20. Jennifer's family law Application includes a claim for "damages for malicious prosecution and defamation" related to what she claims to be "false criminal allegations and false statements".

21. Jennifer subsequently issued a mirror civil Statement of Claim seeking damages of $1,000,000 for "malicious prosecution, defamation and abuse of process" related to the same criminal charges. In these claims, Jennifer makes bald allegations of malicious prosecution, defamation and abuse of process with no supporting facts or particulars.

22. Jennifer's entire Civil Claim is three paragraphs:

a. The Plaintiff claims: $1,000,000 in compensatory, general and punitive damages

b. The above claim is for Malicious Prosecution/Abuse of Process commencing June 3, 2018 and continuing up until present. This includes:

i. The deliberate making of false allegations to the police leading to the Plaintiff being arrested and charged with "Assault" and "Assault with a Weapon"

ii. The perpetuation of false criminal allegations against the Plaintiff, via Superior Court of Justice proceedings, to further the Defendant's personal and malicious objectives

c. The above claim is for defamation, commencing June 3, 2018, and continuing until at least July 2020. this includes the extensive disseminating of false and damaging information that the Plaintiff assaulted the Defendant, and that the Plaintiff has a history of severe anger management problems and verbal and emotional abuse.

23. As her claims relate to the same issue and are based on the same facts, there is a risk of inconsistent findings. The same issue will effectively be tried twice, in two different courts, before two different judges, and Peter will have to pay double the amount of legal fees defending the issue.

24. I am satisfied that it would be more convenient to hear the family law case and the civil case together, that there are issues of fact and law in common which could result in inconsistent findings, that it would be inefficient to have both cases proceed at the same time and that it is in the interests of justice that the two proceedings be consolidated.

Motion to Strike the Pleadings

25. Pursuant to Rule 1(8) of the Family Law Rules, where a party has failed to comply with a Court Order, the Court may make any of the following orders: (1) an order for costs; (2) an order striking out any pleading or other document filed by a party; or (3) an order that the party is not entitled to any further order from the court unless the court orders otherwise.

26. If an order is made striking a party’s pleading, Rule 1(8.4) provides that the party is not entitled to any further notice of steps in the case; is not entitled to participate in the case in any way; that the court may deal with the case in the party’s absence; and a date may be set for an uncontested trial.

27. In addition, the Court has the inherent jurisdiction to make any order that it considers appropriate in order to address a party’s failure to respect the court process, including failure to comply with court orders. This authority includes the jurisdiction to strike a claim of a party who is breach of an order: Levely v. Levely, 2013 ONSC 1026, at para 11.

28. In Gordan v. Starr, 2007 CanLII 35527 (ON SC), [2007] OJ No. 3264 Quinn J stated that, “court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that family law proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with…orders.”

29. In Ferguson v. Charlton, 2008, ONCJ 1, at para 64, the Court set out the following three-part test to determine whether to apply Rule 1(8) of the Family Law Rules:

a. The Court must ask whether there is a triggering event that would allow it to apply the Rule. The triggering event would be non-compliance with a court order.

b. If the triggering event exists, the Court should ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under the Rule or by ordering that the Rule does not apply. The Court’s decision whether or not to exercise its discretion ought to take into account all relevant history in the course of the litigation, and more specifically, the conduct of the non-complying party.

c. In the even the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as ot the appropriate remedy pursuant to the provisions of the Rule: See also Van v. Palombi, 2017 ONSC 2492(Div.Court) at para 30.

Breaches of Court Order by Jennifer

30. The following is a chart which sets out various court orders made against Jennifer which she has not complied with:

Date	Order	Breach
January 30, 2020	Costs Order of Justice Diamond against Jennifer for $7,500	Jennifer has not paid these costs.
June 21, 2019	Consent Order of Justice Horkins to sell the matrimonial home	Jennifer took unreasonable positions and the listing and sale became extremely contentious resulting Peter having to bring an urgent motion that was successful.
July 8, 2020	Order of Justice Horkins finding urgency in Peter's motion dispensing with Jennifer's consent to sell the home and ordering a deadline for Jennifer's responding material	Jennifer did not serve any responding material and then sought to adjourn Peter's urgent motion.
July 16, 2020	Endorsement/Order of Justice Hood granting Peter's motion to dispense with Jennifer's consent and setting out deadlines and requirements for costs submissions.	Costs submissions limited to 2 pages. Jennifer filed 20-page costs submissions.
August 25, 2020	Costs Order of Justice Hood against Jennifer for $7,000	Jennifer has not paid these costs.
September 15, 2020	Order of Justice Hood finding urgency related to Peter's motion (relating to the emails Jennifer stole from him as set out below) and setting timelines for Jennifer's responding material.	Jennifer did not serve her materials in accordance with the procedural Order of J. Hood and then sought to adjourn Peter's urgent motion.
October 9, 2020	Endorsement of Justice Kiteley ordering the adjournment of Peter's urgent motion on terms including that Jennifer was prohibited from using or referring to the stolen emails for any purpose and setting timelines for Jennifer to serve and file her responding materials.	Jennifer did not comply with Justice Kiteley's timeline for her responding materials and missed the deadline by over 2 weeks.
November 25, 2020	Endorsement of Justice Kiteley after hearing Peter's urgent motion on November 24, 2020 prohibiting Jennifer from using or referring to the stolen emails for any purpose and in any proceeding before any court.	Jennifer knowingly and deliberately breached this order by repeatedly referring to the stolen emails in her appeal materials before the Divisional Court served and filed in December 2020 and January 2021.
February 23, 2021	Order of Justice Kiteley finding that Jennifer deliberately accessed Peter's email account and deliberately looked at, forwarded, used and retained copies of the emails. Justice Kiteley further ordered Jennifer to pay costs on a full indemnity scale and directed the filing of costs submissions.	Jennifer has not complied with any of Justice Kiteley's substantive orders regarding the emails. She filed her responding costs submissions approximately 5 weeks after Justice Kiteley's deadline. Jennifer also breached this Order by including references to the stolen emails in her Discovery Plan in her Civil Claim.
March 2, 2021	Costs Order of Divisional Court Justices Sachs, Lederer, and Mew against Jennifer for $5,000	Jennifer has not paid these costs.
April 7, 2021	Order of Justice Hood setting timelines for filing material for this long motion.	Jennifer has not filed any responding motion materials.
July 16, 2021	Costs Order of Justice Kiteley against Jennifer for $39,434.18.	Jennifer has not paid these costs.

31. I am satisfied that there is a triggering event in that Jennifer has failed to comply with 12 Court Orders in the family law proceeding.

32. Courts have struck out pleadings in cases of far less non-compliance with Court orders: Oelbaum v. Oelbaum, 2011 ONCA 300, at paras 2, 4, and 9; Purcaru v. Purcaru, 2010 ONCA 92, at paras 17, 19-21.

Behaviour

33. She has also acted particularly inappropriately by accessing 1850 of Peter’s emails from his email account, forwarding them to her private email account and attempting to use them in this family proceeding and in the civil action (now the consolidated action).

34. When Peter discovered Jennifer had obtained his private emails, he brought an urgent motion. The triage judge deemed his motion urgent and ordered timelines for motion material. Jennifer did not file responding material and sought an adjournment. Justice Kiteley heard the contested adjournment. Her Honour ordered the adjournment on the terms Peter sought, namely, that Jennifer be prohibited from using or referring to any of the stolen emails for any purpose.

35. Her Honour ordered Jennifer to file responding motion material by a certain date. She missed the deadline once again. In breach of Justice Kiteley's Order, Jennifer repeatedly referenced the emails in her appeal materials to the Divisional Court in December 2020 and January 2021 and in her said Discovery Plan in the civil proceeding. . Her Discovery Plan references Peter’s emails going back to 2010—4 years before the parties met.

36. She also failed to return the materials when ordered to do so, as set out above. These emails included correspondence with his family law counsel, his criminal law clients, emails relating to the listing of the matrimonial home, to the management of his law practice and private emails with family members and his girlfriend.

37. She has also accused almost every judge who has ruled in this case of bias as follows:

a. In her Amended Notice of Motion for Leave to Appeal the Order of Justice Hood, dated July 16, 2020, dated August 10, 2020, Jennifer accuses Justice Hood of bias (para c, page 2 and paras g and i, page 3);

b. In her Affidavit, sworn November 17, 2020, Jennifer accuses Justice Hood of bias (para 53);

c. In her Factum, dated December 15, 2020, Jennifer accuses Justice Hood of bias in both the decision on the motion and costs (at paras 14(d), 51, 52, 62, 73, 74, 82-84, 86 and 88);

d. In her Factum, dated December 15, 2020, Jennifer accuses Justice Horkins (who held the initial Case Conference and was the Triage Judge on Peter's Motion for the sale of the Matrimonial Home) of bias stating that "At the parties' Case Management Conference, Justice Horkins had previously demonstrated definitive and consequential bias against Ms. Dixon" (para 59);

e. In her Notice of Appeal of the Order of Justice Kiteley, dated February 23, 2021, dated August 10, 2020, Jennifer accuses Justice Kiteley of bias (para 1, page 2 and paras 8-16, pages 3-4);

f. "…I was prejudiced by Justice Kiteley's order which while granting an adjournment on the merits of my medical leave, ordered that, in the interim, I engage in fundamental activities and legal documentation significantly favouring the position and claims of the Respondent, prior to my response materials being Court." (Affidavit, sworn November 2, 2020 at para 60);

g. "Through no fault of my own, the criminal proceeding was protracted for a substantial amount of time. Due to the Crown counsel's extensive, wilful mishandling of the case, I was compelled to file an Abuse of Process application to have the Crown counsel removed from the case…" (Affidavit sworn December 16, 2019 at para 19; Affidavit sworn November 2, 2020 at para 21; and Affidavit sworn November 17, 2020 at para 20); and

h. In referring to the statement of the Crown on the record in December 2019, Jennifer states: "…non-conclusive statements made by a, regrettably, dubious Crown counsel…" (Affidavit sworn December 16, 2019 at para 29).

38. She has demonstrated no regard for this court and continues to act as she pleases while causing Peter to incur significant legal fees and delaying a final and just resolution of the issues in this case.

39. In my view, given all of the history, including her ongoing blatant disregard for court orders, her disrespect of this court, and her behaviour in the civil proceeding which included references to emails ordered to be returned to Peter, it is not appropriate to exercise my discretion in favour of Jennifer by not sanctioning her under these rules. She did not even bother to attend this hearing.

40. I am therefore striking her pleading in the exercise of my discretion.

41. I note that with respect to the civil claim it does not satisfy the rules for pleading in any event. Jennifer makes bald allegations of malicious prosecution, defamation and abuse of process without sufficient supporting facts or particulars.

42. A claim will be found legally insufficient when its allegations “do not give rise to a recognized cause of action or it fails to plead the necessary elements of an otherwise recognized cause of action…[A] plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for [the defendant] to reply should be struck”: Aristocrat Restaurants Ltd. v. Ontario, 2003 CarswellOnt 5574, at paras. 18-19.

Costs

43. Peter seeks full indemnity costs in the amount of $26,254.99.

44. Modern costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlement, to discourage and sanction inappropriate behaviour, and to ensure that cases are dealt with justly under Rule 2(2) of the Family Law Rules (the “Rules”): Matina v. Matina, 2018 ONCA 867 at para 10, Probst v. Shah, 2020 ONSC 2290, at para 2; Serra v. Serra 2009 ONCA 3959.

45. A costs award should always reflect what is a fair and reasonable amount to be paid to the successful party: Oduwole v. Mosses 2016 ONCJ 653.

46. “Proportionality and reasonableness are the touchstone considerations to be applied in fixing the amount of costs.”: Beaver v Hill, 2018 ONCA 840 at para 12. However, the rules do provide for an entitlement to full recovery costs in specific circumstances, including bad faith: r. 24(8).

47. Further, because the Rules do not mention any scale of costs, judges are not confined to awarding costs on either a partial indemnity or substantial indemnity basis.

48. Pursuant to r. 24(12), the Court must also consider the reasonableness and the proportionality of a number of factors as they relate to the importance and complexity of the issues, including each party’s behaviour, the time spent by each party, any written offers to settle, any legal fees, including the number of lawyers and their rates, any expert witness fees, any expenses paid or payable and any other matter: r. 24(1) and r. 24(12), Belair v. Bourgan, 2019 ONSC 2170 at para 37.

49. At the motion before Justice Kitely regarding the stolen emails, Justice Kitely awarded full indemnity costs on the basis of Jennifer’s conduct. She continues to be in substantive breach of that Order. Her conduct in this case in failing to comply with court orders, accusing judges of bias, and causing Peter to incur significant legal costs justifies an award of full indemnity costs.

50. I am satisfied that the time spent was reasonable, that the number of lawyers and their rates are reasonable and that the word done was required for a motion of this nature which was anticipated to be contested.

51. Therefore I am awarding Peter $26,000. I have reduced this slightly as the hearing did not take as long as counsel estimated given that Jennifer did not attend.

52. Order to go in the form attached.

Papageorgiou J.

Released: September 28, 2021

COURT FILE NO.: FS-19-9906

DATE: 20210923

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jennifer Dixon

Applicant

– and –

Peter Lindsay

Respondent

REASONS FOR JUDGMENT

Papageorgiou J.

Released: September 28, 2021