Court File and Parties
COURT FILE NO.: F237/20 ext.0002
DATE: 20220802
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Martin Berendson, Applicant
AND
Monica Cecilia Izquierdo Rubio, Respondent
BEFORE: Justice Spencer Nicholson
COUNSEL: Self-represented, Applicant/Responding Party
D. Brubacher for the Respondent/Moving Party
HEARD: May 10, 2022
CORRECTED[^1] REASONS
NICHOLSON J.:
[1] In the fall of 2020 and into 2021, over the span of several months, Korpan J. heard the trial of the Respondent father’s application pursuant to the Convention on the Civil Aspects of International Child Abduction, Can.T.S. 1983, No. 35 (“Hague Convention”) for an order for the return of the parties’ child, now age 9, to Peru.
[2] In her comprehensive 84-page decision dated June 21, 2021, Korpan J. dismissed the application, and adjourned the mother’s claim for custody (Berendson v. Izquierdo Rubio, 2021 ONSC 3466). I understand that Korpan J.’s decision, after several wrong turns, has been appealed to the Ontario Court of Appeal. That decision is pending.
[3] Of note, Korpan J. found as follows:
The child’s habitual residence immediately before he was removed was Peru;
The child was wrongfully removed from Peru because the father has custody rights in Peru which were actually exercised at the time of the removal or would have been so exercised but for the removal;
There is a grave risk that the child’s return to Peru would expose him to physical or psychological harm or otherwise place him in an intolerable situation;
The child has not yet attained an age and degree of maturity to find that he objects to being returned to Peru;
The return of the child is not contrary to the fundamental principles of Canada relating to the protection of human rights and fundamental freedoms; and
The father’s application for return of the child is dismissed.
[4] Korpan J. made significant findings, stating at paragraph 279 that “it is apparent that the father has engaged in a pattern of domestic violence against the mother, that has escalated to death threats in August of 2019, which threats for the first time, now include the child.” She then described that the father’s actions included physical, emotional and psychological violence towards the mother. Korpan J. continued, at para. 282, as follows:
[282] In support of my findings that the father has engaged in a pattern of domestic violence against the mother, I have considered that:
(a) he tried to isolate her from her family during the marriage;
(b) he was physically abusive to her and to D during the marriage:
(c) after the separation, he was verbally abusive to her, mocked her, and threw food at her;
(d) he followed her and grabbed the child from her arms;
(e) he followed her older children and took photos of them and sent the photos to her;
(f) he attended uninvited at her home when she was not there and when it was not his visitation day;
(g) he initiated a public campaign accusing her of bigamy;
(h) he caused or at least contributed to her loss of employment in Piura;
(i) he initiated a public campaign when she moved to Lima;
(j) he charged her with child abuse when she moved to Lima;
(k) he renewed his public campaign accusing her of bigamy when she moved to Lima, after the criminal charges were dismissed and the appeal of the dismissal of the charges were dismissed;
(l) he caused or at least contributed to her loss of employment in Lima;
(m) he attended at her home in Piura with the police to record a denial of access six months after she had moved to Lima;
(n) he breached the protective order in favour of her and the child by continuing to attend at her home;
(o) he filed false police reports for denial of access;
(p) he appealed the criminal complaint against her for damage to his car after the criminal charges were dismissed and the appeal of the dismissal of the charges was dismissed;
(q) he made another criminal complaint against her for the third time for bigamy in which he requested pretrial imprisonment;
(r) he filed a complaint with the Ministry of Women and Vulnerable Populations alleging that the child was at serious risk in her care but then failed to attend for his interview and psychological assessment;
(s) he filed complaints against her lawyers, making it difficult for her to find legal representation;
(t) he continued to bring the police to her home despite his knowing that bringing the police distressed the child;
(u) when the mother tried to change the location of the exchange to a neutral location where police would not be present, the father refused, attended at her home, filed a police complaint, and did not pick up the child for visitation;
(v) he tried to intimidate her trial witnesses, posted on social media that some were corrupt, published trial documents on Twitter, and continued to use social media as a tool to harass her; and
(w) he made death threats against both her and the child.
[5] In the motion before me, the mother indicates that the father has continued to recruit the Ontario police against her. Furthermore, he has sued the mother’s trial lawyer personally in small claims court.
[6] In his endorsement dated March 14, 2022, Tobin J. noted that there were two cases before the court, both scheduled for a case conference. He noted that both cases have the same court file number and extension number as the original Hague Convention application. He thus directed the clerk of the court to create two new OneDrive files.
[7] The first was to be Extension 0001 and the mother was to be the Applicant and the father the Respondent. This file was to relate to the relief that the mother sought in her answer and claim in response to the original Hague Convention application. Therein, the mother sought custody of the child.
[8] Tobin J. directed that Extension 0002 would be the father’s new claim for access under the Hague Convention, issued on January 7, 2022.
[9] The within motion is with respect to Extension 0002. Tobin J. described that the mother seeks to dismiss the application for “lack of jurisdiction”. Indeed, the motion is framed in that manner. The mother claims that the court lacks jurisdiction to hear this application because it was already decided by Korpan J. I would describe the motion differently. It seems to me that this is really about whether the within application is an abuse of process of the court.
[10] The mother cites Rules 1(7) of the Family Law Rules and Rule 21.03(a), (c) and (d) of the Rules of Civil Procedure.
[11] The mother also asks this court to prevent the father from commencing any further applications or motions without leave or permission of the court pursuant to s. 140 of the Courts of Justice Act, and/or Rules 2(2) – (5) and 14(21) of the Family Law Rules.
[12] Additionally, the mother seeks an order pursuant to Rules 1(8) and/or (8.1) of the Family Law Rules that the father not be permitted to proceed with any further steps unless he pays the outstanding costs awards made against him, including:
• Costs Order of Korpan J. dated February 14, 2022 (relating to the Hague Convention trial) in the amount of $50,000 all inclusive;
• Costs Order of Tobin J. dated February 2, 2022 (in relation to an unsuccessful contempt motion by the father) in the amount of $300 payable by March 31, 2022; and
• Costs Order of MacLeod J. dated April 12, 2022 (in relation to a Restraining Order against the father) in the amount of $2,892.80.
[13] The mother advises that the order of MacLeod J. whereby a restraining order was imposed against the father is under appeal as well.
[14] Finally, the mother seeks an order for security for costs pursuant to Rule 24(13) of the Family Law Rules.
[15] I should also note that before the Hague Convention application, the parties had been involved in what Korpan J. described at para. 60 of her trial decision as a “dizzying array of court proceedings in Peru”. She describes those proceedings at length at paragraphs 106-119 of her decision.
[16] On this motion, the father relied upon the articles of the Hague Convention. Article 16 provides that the Contracting State (Canada in this case) shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under the Convention. Thus, the father argues that custody is not to be determined by an Ontario court.
[17] Furthermore, Article 21, for example, permits an application for effective exercise of right of access.
[18] The mother has included in her affidavit material filed by the father in respect of the appeal of Korpan J.’s trial decision. He brought a motion to present new evidence on appeal. I quote the following from the grounds for the motion to present further evidence on his motion for leave to present further evidence on appeal:
“g) The London tribunal has been openly biased in favour of the abducting party, losing objectivity in the application of the HCCH 1980. Handling this sensitive international treaty procedure as a local Ontario “divorce case”, bombarding the left-behind parent with unenforceable and humiliating supervised access orders that were never complied with, restraining orders, and close to CAN $53,500.00 in “court fees”. The procedure has had the only allowed presence of local “abused women” advocate, by the name of Rita Galea, the main judges responsible for this case, J. Korpan and J. Tobin have been members of abused women organizations, so the mother allegations of abuse sound stronger that following an International Law Treaty. The abducting party is also a member of such NGOs in Peru.
h) Contrary to exercising of the Hague Convention, the abducting party is behind an immigration scheme with her partner Mr. Jiminez, using [the child] as “bait” to make believe the IRB (Immigration and Refugee Board of Canada) that they need protection in Canada. This is being done with the help of an old lawyer by the name of Michael F. Loebach, whom I believe has sent his apprentice, Mrs. Brubacher, to “make sure she wins” the Hague Convention case, so his Refugee Claim has an “open road” to success. To this moment, the documents for the Refugee Claims have not been provided to the Justice system, these are: *) Schedule A, *) Basis of Claim (BOC), and Schedule 12. I am sure that if this honourable court orders disclosure of these documents, I will be able to point out misrepresentation and perjury. Blocking access is part of their strategy because if I recover the good and loving relationship [the child] and I had, their refugee claim will fall like a house of cards.”
Applicable Rules:
[19] Rule 1(7) addresses situations in which the Family Law Rules do not “cover a matter adequately” and permits a court to refer, when it considers it appropriate to do so, to the Rules of Civil Procedure. Rule 21.03 of the Rules of Civil Procedure authorizes a civil court to stay or dismiss an action where (a) the court has no jurisdiction, (c) another proceeding is pending Ontario or another jurisdiction between the same parties in respect of the same subject matter or (d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court.
[20] However, Rule 16(12) of the Family Law Rules provides as follows:
(12) The court may, on motion,
(a) decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save substantial costs;
(b) strike out an application, answer or reply because it sets out no reasonable claim or defence in law; or
(c) dismiss or suspend a case because,
i) the court has no jurisdiction over it,
ii) a party has no legal capacity to carry on the case,
iii) there is another case going on between the same parties about the same matter, or
iv) the case is a waste of time, a nuisance or an abuse of the court process.
[21] It is abundantly clear that the Family Law Rules contain the functional equivalent of Rule 21.03 of the Rules of Civil Procedure. There is, in my opinion, no reason to rely upon rule 21.03 of the Rules of Civil Procedure in these circumstances.
[22] Rule 16(12) was not formally “pleaded” within the mother’s Notice of Motion. However, I am of the view that the father had adequate notice, since the mother did refer to Rule 21.03 of the Rules of Civil Procedure, which is so similar in nature to Rule 16(12) that he cannot be said to have been unaware of what she was asking this court to do on this motion. Furthermore, this is an appropriate case for me to grant permission under Rule 16(13) for the admission of evidence on this motion and I do so. Most of the necessary evidence is referred to by Korpan J. in her decision, in any event.
[23] Section 140 of the Courts of Justice Act empowers a judge of the Superior Court of Justice, on application, to order that no further proceedings be instituted by a person without leave of a judge where the judge is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner,
[24] Rule 14(21) of the Family Law Rules provides as follows:
(21) If a party tries to delay the case or add to its costs or in any other way to abuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions in the case without the court’s permission.
[25] Rule 1(8) of the Family Law Rules authorizes the court to make certain orders in relation to a party’s failure to obey court orders. Rule 1(8.1) permits the court to employ the same powers in relation to a party’s failure to follow the rules. Among the sanctions listed is to dismiss a claim or to strike out an application.
[26] Rule 24(13) allows a judge to make an order for security for costs where one or more factors applies. The factors include, inter alia, residing outside Ontario, having an unpaid order for costs in the same case or another case or that there is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
Analysis:
Abuse of Court Process:
[27] In Foy v. Foy (No. 2), 1979 CanLII 1631 (ON CA), the Court of Appeal considered a domestic case involving “a very lengthy history of bitterly contested legal proceedings”. The motions judge had invoked the Vexatious Proceedings Act, R.S.O. 1970, c. 481, and ordered that the husband could not institute any civil legal proceeding in any court without leave of a judge.
[28] Howland C.J.O. described vexatious proceedings as follows:
“The word “vexatious” has not been clearly defined. Under the Act, the legal proceedings must be vexatious and must also have been instituted without reasonable ground. In many of the reported decisions the legal proceedings have been held to be vexatious because they were instituted without any reasonable ground. As a result the proceedings were found to constitute an abuse of the process of the Court. An example of such proceedings is the bringing of one or more actions to determine an issue which has already been determined by a Court of competent jurisdiction: Stephenson v. Garnett, [1898] 1 Q.B. 677 at pp. 680-1; Re Langton, [1966] 3 All E.R. 576. In the latter case 10 actions were brought to relitigate a matter which was fully dealt with in the first action. The Court looked at the whole history of the matter, the general character of the proceedings and the results in concluding that an order should properly be made under s. 51(1) of the English Act of 1925.”
[29] Howland C.J.O. noted that the Court has an inherent jurisdiction to see that its process was not abused by a proceeding without reasonable grounds. He then listed several instances that could be considered “vexatious” including where “the same purpose might have been effected in a previous action.”
[30] Blair J.A. in dissent, on the result, stated as follows:
“I agree with Chief Justice Howland’s interpretation of the word “vexatious” based on his careful examination of the authorities. It is plain that the word “vexatious” as used in this Act is broadly synonymous with the concept of abuse of process developed by the Courts in the exercise of their inherent right to control proceedings. The jurisdiction to strike out or stay proceedings as an abuse of process is not, as the authorities make clear, limited to actions or other originating proceedings. It applies to appeals and interlocutory proceedings of all kinds.
The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant’s legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes their image in the administration of justice.”
[31] It should be noted that following the Foy decision, s. 140 of the Courts of Justice Act was enacted to broaden the reach of the former Vexatious Proceedings Act.
[32] The factors to consider in determining whether a litigant is vexatious are set out in the leading case of Re Lang Michener and. Fabian, 1987 CanLII 1172 (ON SC). Therein it is described that:
(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 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) a party’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[33] It should also be noted that s. 140 of the Courts of Justice Act should only be invoked in the clearest and most compelling of cases because it limits a party’s access to justice by preventing them from initiating or conducting litigation.
[34] The father’s stance on the within motion makes it clear to me that he is attempting to relitigate the Hague Convention application. He provided me with, and relied heavily upon, the Hague Convention, as well as the Vienna Convention on the Law of Treaties 1969.
[35] The January 7, 2022 application seeks an “urgent order restoring rights of access to tour (sic) son, …, and his father pursuant to The Hague Convention on the Civil aspects of International Child Abduction, 1980”. He asks for an order that the mother comply with the Peruvian Orders and the Hague Convention and asks for a determination that “the Respondent is wrongfully retaining [the child] in Ontario. He then reiterates under “Important Facts Supporting My Other Claim(s)” all of the same history that he raised during the trial conducted before Korpan J. He has merely substituted “rights of access” for “returning the child” as was asked for in his 2020 application.
[36] I note paragraph 3 of Korpan J.’s trial decision, which reads:
[3] This case is about whether this court in Ontario, or the court in Peru, should make custody and access decisions about the child.
[37] Thus, the same issues that the father wishes to raise in the January 7, 2022 Hague Convention application were squarely addressed by Korpan J. I am satisfied that this application represents an attempt to relitigate the Hague Convention trial that has been concluded. As such, the January 7, 2022 application is, in my view, an abuse of the court process and must be halted in its tracks. It is also a vexatious proceeding, in my view, that is part of the pattern of harassment that Korpan J. described in her trial decision. I rely on Rules 16(12)(c)(iii) and (iv) in dismissing this application but also on the inherent jurisdiction of the court to control its processes.
[38] The father has appealed Korpan J.’s decision to the Court of Appeal. Assuming that he perfected the appeal after being granted an extension to do so, he has not yet exhausted his appeal rights. The Court of Appeal is the proper forum for the father to argue the merits of the Hague Convention case. He is not, however, entitled to a “do over”. Our courts do not have the resources to try the same cases on multiple occasions. This also would create a risk of inconsistent findings and puts both parties to substantial expense.
[39] Korpan J. heard several weeks of testimony during the trial. She has described in her trial decision the conduct of the father that constituted a pattern of violence on his part, towards the mother. She was well placed to make those findings. Considering those findings, the within application fits well into the father’s pattern of harassing the mother.
[40] Furthermore, several of the hallmarks noted in Re Lang Michener are present in this case. In addition to multiple applications to determine the same issue, the grounds in the January 7, 2022 application have been “rolled forward” from the previous application. The father has sued the mother’s lawyer in small claims court. The father has not been paying the costs awarded against him. I pause, however, to say that I do not believe that the father is obligated to pay the costs of the trial until the appeal has been finally disposed of. I also note that in his grounds for appeal, the father has made inappropriate allegations, in my view, against members of the judiciary.
[41] In short, there appears to be ample evidence that the father could qualify as a “vexatious litigant” within the meaning of s. 140 of the Courts of Justice Act. However, s. 140 of the Courts of Justice Act may only be invoked “on application” (see: Lukezic v, Royal Bank of Canada (2012), 350 D.L.R. (4th) 111, 2012 ONCA 350). Accordingly, I am without jurisdiction to rely upon s. 140 of the Courts of Justice Act and cannot declare the father a vexatious litigant thereunder even had I been inclined to do so.
[42] Rule 14(21) applies, on its face, to the situation where a party makes “numerous motions” without merit. The order that is authorized would be to prevent the party from making any other motions in the case without the court’s permission. Rule 14(21) is not broad enough, in my view, to prohibit a party from commencing subsequent applications.
[43] Rule 1(8) can be relied upon in relation to unpaid costs. However, striking pleadings under Rule 1(8) should only be done in exceptional circumstances. As noted, I do not believe that a party is obligated to pay costs until an appeal is disposed of (see: Rule 38 (33) and (34) of the Family Law Rules). Accordingly, the amount of outstanding costs is $300. While I am not condoning the non-payment of that costs award by the father, I am not prepared to rely on the failure to pay those costs to strike the January 7, 2022 application. I have already done so on the basis that the application constitutes an abuse of process.
[44] For the same reasons, i.e., that the respondent has appealed the two decisions in which costs were awarded, I am not prepared to order that he post security for costs.
[45] My declination to make any orders due to the father’s non-payment of costs should not be taken as precluding the mother pursuing a remedy for unpaid costs at a later date in these proceedings.
Disposition:
[46] For the foregoing reasons, I dismiss Mr. Berendson Leigh’s application commenced January 7, 2022 as constituting an abuse of process.
[47] I do not have jurisdiction to declare that Mr. Berendson Leigh is a vexatious litigant. This determination does not prevent the mother from pursuing this remedy in the proper manner.
[48] Having dismissed the January 7, 2022 application as being an abuse of process, I decline to make any orders on the basis of unpaid costs awards, including an order for security of costs.
[49] In my view, the mother is entitled to her costs of this motion, subject to reviewing any arguments to the contrary. The mother may file written submissions regarding costs no later than September 1, 2022, no longer than 2 pages in length, double spaced. The father may file responding written submissions, also no longer than 2 pages in length, double spaced, by September 15, 2022.
Justice Spencer Nicholson
Date: August 2, 2022
[^1]: This decision has been corrected to reflect the proper title of proceedings for Court File No. 20-00000237-0002 as Martin Berendson, Applicant and Monica Cecilia Izquierdo Rubio, Respondent, thereby changing the citation to properly reflect Berendson v. Rubio, 2022 ONSC 4488.