Court File and Parties
COURT FILE NO.: CV-20-650464 DATE: 20220124 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ELIOT ABRAHAMS AND: THE ATTORNEY GENERAL OF ONTARIO, representing HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, JUDY GOLDENFAJN-ABRAHAMS and TILDA ROLL
BEFORE: VERMETTE J.
COUNSEL: Eliot Abrahams, self-represented Andi Jin, for the Attorney General of Ontario representing Her Majesty the Queen in right of the Province of Ontario Sarah L. Jones, for Judy Goldenfajn-Abrahams Tilda Roll, self-represented
HEARD: October 20, 2021
ENDORSEMENT
[1] The Defendants move to dismiss the action because it is frivolous, vexatious and an abuse of process and for an order striking the Statement of Claim without leave to amend because it fails to disclose a reasonable cause of action.
[2] In my view, this action is vexatious and constitutes an abuse of process as it seeks to relitigate matters that have already been determined in family law proceedings in which the parties have been involved. Therefore, this action is dismissed.
FACTUAL BACKGROUND
A. The parties
[3] The Plaintiff and the Defendant Judy Goldenfajn-Abrahams were previously married and were involved in family law proceedings before this Court (“Family Law Proceeding”).
[4] The Defendant Tilda Roll acted as Ms. Goldenfajn-Abrahams’ lawyer in the Family Law Proceeding.
[5] The Defendant Her Majesty the Queen in right of the Province of Ontario has been involved in the Family Law Proceeding through the Family Responsibility Office (“FRO”). FRO has a statutory duty to enforce support orders where the support order and the related support deduction order, if any, are filed in FRO’s office and to pay the amounts collected to the person to whom they are owed: see section 5 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31.
B. Overview of Family Law Proceeding
[6] On May 30, 2016, Justice Hughes made a consent final order in the Family Law Proceeding (“May 30, 2016 Order”). The May 30, 2016 Order dealt with custody, access, child support (monthly payments of $839 by the Plaintiff), section 7 expenses (monthly payments of $500 by the Plaintiff, subject to an annual accounting of the expenses) and other matters. The May 30, 2016 Order also provided for security for child support and section 7 expenses for the period of September 1, 2015 to and including August 1, 2018 in the form of a lump sum payment by the Plaintiff to Ms. Goldenfajn-Abrahams, which was to be deposited in a dedicated high interest savings account.
[7] FRO got involved in 2018 and began enforcement in September 2018.
[8] In response to a Notice to Suspend Driver’s Licence issued by FRO on April 24, 2019, the Plaintiff brought a motion for a refraining order to prevent the suspension of his driver’s licence and to prevent FRO from enforcing shared section 7 expenses. The motion was heard by Justice Sanfilippo on May 30, 2019. While Justice Sanfilippo found that the Plaintiff had failed to meet the applicable legal test, he granted some relief to the Plaintiff on a conditional basis. Justice Sanfilippo’s reasons read as follows:
The moving party, Mr. Abrahams, brings this motion for a refraining order to prevent the suspension of his driver’s licence and to prevent the Family Responsibility Office from enforcing shared expenses. This was in response to a Notice to Suspend Driver’s Licence issued by FRO on April 24, 2019.
Mr. Abrahams brings this motion under s. 35(1) of the Family Responsibility and Support Arrears Enforcement Act (the “Act”). He has not, however, made a motion to change, as is required by s. 35(1). He has, however, undertaken to obtain, within 20 days of the date of this order, a court date for a motion to change the support order contained in the Final Judgment of Justice Hughes dated May 30, 2016 (the “Judgment”). On the basis of this undertaking, I allowed Mr. Abrahams to proceed with this motion in accordance with section 35(4) of the Act.
The evidence before me establishes that FRO seeks to enforce default in payment by Mr. Abrahams of $12,501 owing and in arrears. This consists of 9 months of arrears of two amounts: $839 pursuant to paragraph 10 of the Judgment and $500 for special expenses for a total of $1,339 per month.
Mr. Abrahams says that the section 7 expenses ought not to be assessed and that he ought to be credited for other amounts that he claims have been paid or are available to the recipient outside of FRO.
In Turk v Ontario (Family Responsibility Office), 2016 ONSC 1106, the court set out a two-part test regarding the making of a refraining order: (1) the support payor must establish that he or she has a prima facie case in his motion to change; and (ii) the support payor must come to the court with clean hands: also Akhter v Ontario (Director of Family Responsibility Office), 2018 ONCJ 888.
Mr. Abrahams has not established this two-part test. He has not established facts in support of any explanation why he has not paid the child support of $839 over the last 9 months, much less a prima facie case. His submissions concerning the special expenses does not establish a prima facie case relative to the entirety of the obligation. Further, in not having made any required payment for 9 months there is an issue as to whether he comes to the court with clean hands, but I do not need to make this finding as the first part of the two part test, which is conjunctive, was not established.
I will, however, provide Mr. Abrahams with some relief, and accept the submission of FRO that it refrain from driver licence suspension on a conditional basis on Mr. Abrahams’ payment monthly of $1,339 plus $661 toward arrears for a total of $2,000 monthly.
I hereby order that, provided that Mr. Abrahams obtain and notify FRO within 20 days of this order of a court date scheduled by him for a motion to change the support order obtained in the Final Judgment, the Family Responsibility Office is refrained from driver licence suspension upon Mr. Abrahams’ payment of $2,000 each month, consisting of $1,339 for monthly child support and $661 towards arrears.
This will remain in place until the hearing of the motion to change, and only so long as Mr. Abrahams is current in the monthly payment of $2,000, subject to further order by this court.
I make this order on my determination that it fairly provides Mr. Abrahams with some relief while he prepares his motion to change for argument, it provides some immediate financial support to the children whose entitlement to this support is well established and it enforces the child support terms contained in the Final Judgment.
Counsel for FRO prepared a form of refraining order which I have signed. [Underlining in the original. Bolding added.]
[9] In June 2019, the Plaintiff issued a motion to change the child support that he owed under the May 30, 2016 Order. The parties attempted to settle the motion to change, and a number of court attendances and orders ensued as a result of the Plaintiff’s position that there had been a settlement. The Plaintiff was ultimately unsuccessful in seeking to enforce an alleged settlement and he was ordered to pay costs in the amount of $10,000, which were ordered to be enforced by FRO as incidental to support.
[10] Ultimately, on January 15, 2020, Justice Nakonechny made a final support order on consent (“January 15, 2020 Order”). The January 15, 2020 Order varied two paragraphs of the May 30, 2016 Order, and ordered the Plaintiff, among other things, to pay monthly child support for two children in the amount of $576, commencing May 1, 2019 up to and including April 1, 2023. The January 15, 2020 Order also provided the following:
a. As of January 1, 2019, section 7 expenses shall be paid by the parties on a 50/50 basis, providing receipts and reimbursement are received and requested.
b. The parties have agreed to settle the outstanding child support payment for the dates September 2018 to August 30, 2019 for the amount of $2,000.00 already paid by the [Plaintiff] to [FRO], which includes a credit of $3,500.00 for overpayment of Section 7 up until August 2018.
[11] The January 15, 2020 Order contained additional provisions and stated that all other terms of the May 30, 2016 Order remained in full force and effect.
[12] The Plaintiff subsequently brought another motion to stay the enforcement actions of FRO in relation to support arrears and the $10,000 costs order. The Plaintiff’s motion was dismissed by Justice Nikishawa on February 27, 2020. Justice Nikishawa applied the same two-part test as Justice Sanfilippo on the prior motion. She concluded that the Plaintiff had not demonstrated a prima facie case for variation and had not sought a variation of the January 15, 2020 Order. She stated the following regarding the second part of the test:
Since I have found that Mr. Abrahams has not met the first part of the test, I need not determine whether he comes to the court with clean hands. I note, however, that a failure to pay support obligations can constitute unclean hands in this context (Turk v Ontario, 2016 ONSC 1106). Mr. Abrahams has not paid the monthly child support since June 2019.
[13] In February 2021, FRO commenced a default proceeding seeking to enforce the January 15, 2020 Order and the $10,000 costs order. On February 18, 2021, FRO obtained a temporary default order against the Plaintiff. Justice Pawagi stated, in part:
The Director's Statement of Arrears, which is presumed to be correct, states that the payor is in arrears of $20,332.43 (which amount includes a costs award of $10,000 which is enforceable as child support).
Payor made submissions on his own behalf. His request for an adjournment to provide the following missing disclsoure [sic] was granted: bank statements and credit card statements from January 2020 to present; notices of assessment for 2017, 2018, 2019; statement of income and expenses for 2020; loan applications made in last 3 years; copy of car lease; proof of CERB payments received; and proof of rent paid; proof of job search effort made since January 2020 including copies of any job applications submitted.
Onus is on payor to demonstrate inability to pay for valid reasons which he did not do. Payor submits that he could have been working but for the suspension of his passport and driver’s license. However, a valid reason is a reason that is beyond a payor’s control and since said suspensions result from his nonpayment of child support they are not beyond his control. Furthermore, the payor’s financial statement shows he is making payments of $300 per month towards a Mastercard debt of $8,750 and thus prioritzing [sic] consumer debt over his child support obligation.
Temporary default order to go for the payor to pay $576 per month for ongoing child support plus $300 per month towards arrears commencing February 1, 2021. […]
[14] Justice Pawagi rendered her decision and granted a final default order on October 19, 2021. By that time, FRO was also seeking to enforce a third order, i.e. another costs order in the amount of $860 (enforceable as child support). FRO’s Statement of Arrears as of October 7, 2021 indicated that the Plaintiff was in arrears of $22,321.24. In her reasons, Justice Pawagi stated, in part:
Prior to the commencement of the default proceeding, the payor made no voluntary payments. FRO received only one payment, on June 14, 2019, as a result of driver’s license enforcement.
Following the commencement of the default proceeding and the making of the temporary default order, the payor began making somewhat regular payments. However, the last voluntary payment by the payor was $576 on June 7, 2021.
The payor provided some financial disclosure but failed to provide any of the following:
a. Personal income tax returns;
b. Business income tax returns;
c. Particulars relating to job search efforts;
d. Job offers or contracts relating to self-employment;
e. Particulars of his business (including details of the nature of his work, how he finds work, hours of work, pay, etc.)
f. Proof of rental agreement for 1209-15 Fort York Blvd; and
g. Proof of rents paid to his partner.
Analysis and the Law
The payor has failed to rebut the twin presumptions set out in s. 41(9) of the FRSAEA; namely, that 1. The payor has an ability to pay the arrears and make subsequent payments under the order; and 2. The Director’s Statement of Arrears is correct.
Neither of the payor’s default dispute or affidavit evidence provides any explanation for the default or valid reason for an inability to pay. Furthermore, he has failed to provide full disclosure to the court, leaving the court unable to ascertain his ability pay.
The burden is on the payor to rebut the assumption he has the ability to pay and he has failed to meet this burden.
The payor’s main focus at the hearing however, was not on his inability [sic] to pay, but rather on what he asserts are fundamental and fatal inaccuracies in the Director’s Statement of Arrears.
The payor has been disputing the Director's Statement of Arrears for some time:
a. The payor contacted Ontario’s Ombudsman in January 2020 and made the complaint that the Director’s Statement of Arrears was wrong. The Ombudsman contacted FRO and reported that FRO’s response was that the statement was correct;
b. The payor brought a motion in the Superior Court of Justice on February 23, 2020 arguing that the Director’s Statement of Arrears was incorrect. The motion was dismissed.
The payor objects to accruals on the Director's Statement of Arrears that pre-date the Order of Justice Nakonechny. However, I note that this order varied the previous Order of Justice Hughes dated May 30, 2016 going forward, it did not vary any arrears that accrued from Justice Hughes’ order.
The payor objects to the accounting of the s. 7 expenses. I acknowledge that this is a confusing process: […].
The payor does not contest the actual s. 7 expenses themselves, just FRO’s accounting of them, which I am satisfied is accurate as set out above.
The payor also does not assert he made direct payments to the recipient or that the regular accruals do not match the court ordered amounts.
Rather, the payor focuses on what he deems are two significant errors in the Director's Statement of Arrears: […]
However, I find these points raised by the payor have no practical import: […]
Thus, the issues the payor takes with how the entries are made have no practical effect on the accuracy of the amounts he owes. [Emphasis added.]
C. The action
[15] The Plaintiff commenced this action on October 30, 2020. He seeks the following relief against the Defendants:
a. compensatory damages in the amount of $10,800.00;
b. general damages in the amount of $11,400.00;
c. special damages in the amount of $68,000.00;
d. aggravated damages in the amount of $40,000.00; and
e. punitive damages in the amount of $40,000.00.
[16] The Statement of Claim does not explain what these amounts represent and how they were arrived at.
[17] The Plaintiff alleges that FRO owed him a duty of care, a fiduciary duty and a duty to act in good faith, which FRO breached. The Plaintiff also alleges that FRO violated his mobility rights under section 6 of the Canadian Charter of Rights and Freedoms by applying for a suspension of his passport based on a fraudulent affidavit and while the statutory requirements were not met.[^1] Further, the Plaintiff alleges that Ms. Goldenfajn-Abrahams and Ms. Roll owed him a duty of care, which they breached. There is also an allegation of negligent misrepresentations against the Defendants.
[18] The summary set out at the beginning of the Statement of Claim (titled “Compendium”) states as follows:
This claim arose not because FRO was enforcing an order of the Superior Court of Justice, but because of problematic decisions made during the course of enforcement.
The support recipient had money available for support, from pre-paid support.
The Defendant, FRO was operating without a court order or support deduction order, or any instruction from the support recipient when it began enforcement action against the Plaintiff on September 2, 2018.
The Defendant, FRO on February 20, 2019 began accruing expenses, when in fact they should not have been enforced by FRO.
When FRO interpreted the May 30, 2016 order, FRO referenced one part of one sentence, and ignored the balance of the same sentence. FRO told the Plaintiff to go back to court if he didn't agree.
The Defendants, [Ms. Goldenfajn-Abrahams] and Ms. Roll, failed to provide accurate information to FRO.
The Defendant, FRO employed every available enforcement method available against the Plaintiff, including threatening Jail.
The Defendant’s negligent misrepresentation inflicted enormous financial and emotional harm and necessitated needless court cost, legal fees and disbursements.
[19] Although the Statement of Claim is at times difficult to follow and not very clear, the Plaintiff’s claims are based on the alleged premise that the amount of arrears claimed was incorrect and that Ms. Goldenfajn-Abrahams had money available for support from “pre-paid support”, which I interpret to be the security provided for in the May 30, 2016 Order.
[20] The Statement of Claim includes the following allegations, among others:
The Defendants knew or ought to have known that the amount of arrears claimed was incorrect.
The Plaintiff […] and his lawyer made every effort to correct the errors that instigated the enforcement action. These efforts included contacting the Defendants [Ms. Goldenfajn-Abrahams], and Ms. Roll by text and email, asking them to correct the errors. These efforts included contacting the Defendant, FRO, by telephone, fax and in emails. Correspondence included detailing the Final Order, sending correspondence including financial records, and highlighted the relevant FRSAEA statutes, and the Family Law Rules.
It is plain and obvious and beyond a doubt that the sworn statements of arrears, filed in the Superior Court of Justice on May 24, 2019 and October 16, 2019 were not accurate.
The Defendants, [Ms. Goldenfajn-Abrahams] and Ms. Roll campaigned on the issue, not limited to FRO, ‘the bank account is empty,’ in an effort to involve FRO. Pre-paid support was available to the support recipient, the money was simply moved out of the account designated in the May 30, 2016 Final Order.
Defendants, [Ms. Goldenfajn-Abrahams] and Ms. Roll refused or ignored multiple requests, by email from the Plaintiff, to inform the Defendant FRO as to the true amount of arrears. The Defendant, Ms. Roll replied: No.
The Plaintiff emailed the Director, October 4, asking that the statement of arrears be adjusted to match the support recipients [sic] affidavit. The Defendant, FRO, refused to act on the support recipients [sic] affidavit, claiming an internal policy that FRO only acts on I&E orders.
Had FRO followed its own rules, and required the Defendant, [Ms. Goldenfajn-Abrahams], to file a statement of arrears, and if a correction was required, the amount would have been adjusted to reflect the affidavit, and the amount FRO was collecting adjusted to match.
Plaintiff brought a motion, 14B, to set aside the refraining order on October 10, 2019. Pleadings included: FRO relied on a defective statement of arrears in the motion to obtain refraining order.
The Defendant, FRO opposed the motion, and it was not heard.
In its material for the motion, FRO filed a statement of arrears, dated October 16, 2019. The statement listed:
(a) amounts accrued before September 2018
(b) reversal of accruals before September 2018
(c) amounts attributed to paragraphs 12 to 15 of the May 2016 Order.
The sworn statement does not reflect the credit owed to the payor outlined in the October 4, 2019, affidavit from the support recipient. It is plain and obvious and beyond a doubt that the Defendant, FRO cannot show the statement was accurate.
- On December 31 at 3:00 pm FRO sent a statement, by email, marked schedule A. The statement was criminally wrong, inflated by $12,000.00 and impossible to settle.
[21] The Defendants each served a Statement of Defence in November 2020. While the Statements of Defence were included in the Defendants’ respective Motion Records, it was agreed at the hearing that the Statements of Defence should not be considered as evidence on these motions. Accordingly, I have not considered them in arriving at my decision, except for the limited purpose of addressing the Plaintiff’s argument that since the Defendants have pleaded to the allegations in the Statement of Claim, they have thereby waived any right they may have to object to it (discussion below).
[22] These motions to strike/dismiss were brought in May 2021.
DISCUSSION
A. Preliminary evidentiary issues
[23] While no evidence is admissible on a motion under Rule 21.01(1)(b), i.e. a motion to strike out a pleading on the ground that it discloses no reasonable cause of action, extrinsic evidence is admissible under Rule 21.01(3)(b), i.e. a motion to have an action dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court: see Currie v. Halton Regional Police Services Board, 2003 CanLII 7815 at paras. 9-10 (Ont. C.A.) (“Currie”).
[24] Further, and in any event, a court has at all times the power to look at court records and proceedings, and to take notice of their contents, even though they may not be formally before the court by affidavit: see Alvi v, Misir (2004), 73 O.R. (3d) 566, 2004 CanLII 47790 at para. 27 (Ont. S.C.J.) and Hartmann v. Amourgis, 2008 CanLII 29106 at para. 11 (Ont. S.C.J.); aff’d by 2009 ONCA 33; application for leave to appeal dismissed: 2009 CanLII 23094 (S.C.C.).
[25] In light of the foregoing, I have considered the various orders and endorsements made in the Family Law Proceeding. A review of these orders and endorsements show that the Plaintiff has misinterpreted some of them in his Statement of Claim and submissions, notably the endorsements of Justices Goodman and Sanfilippo.
B. Impact of delay and delivery of Statements of Defence
[26] The Plaintiff argues that the motions should be dismissed for delay. He also argues that by filing Statements of Defence, the Defendants have pleaded to the allegations in the Statement of Claim and have thereby waived any right they may have to object to it.
[27] Rule 21.02 of the Rules of Civil Procedure provides that a motion under Rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.
[28] Rule 2.02 states the following:
A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,
(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or
(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.
[29] With respect to the issue of delay, the Statement of Claim was issued on October 30, 2020, and these motions were brought approximately seven months later, in the second half of May 2021.[^2]
[30] Rule 21.02 is clear that motions under Rule 21 must be brought promptly. The requirement to act promptly in bringing such motions is consistent with the goals of reducing costs in litigation, facilitating early resolution of matters and bringing cases to an expeditious and just determination: see Rule 1.04 of the Rules of Civil Procedure and Paterson v. HMQ Ontario, 2021 ONSC 6295 at para. 25. In appropriate circumstances, a court may refuse to hear a motion to strike that has not been brought promptly: Fleet Street Financial Corp. v. Levinson, 2003 CanLII 21878 at para. 16 (Ont. S.C.J.) and Paterson v. HMQ Ontario, 2021 ONSC 6295 at para. 25.
[31] However, delay does not act as a bar to any and all Rule 21 motions. Among other things, different considerations may apply where the motion will effectively end the action: see Fleet Street Financial Corp. v. Levinson, 2003 CanLII 21878 at para. 18 (Ont. S.C.J.). Further, delay cannot be determinative in a Rule 21 motion that is based on abuse of process. As set out below, judges have an inherent discretion to prevent an abuse of the court’s process. The fact that the defendants may not have brought their Rule 21 motion sufficiently promptly is not a proper justification to allow an abuse of the court’s process to continue.
[32] Given my conclusion that this action is vexatious and an abuse of the court’s process, I refuse to dismiss the motions on the basis of delay.
[33] While I decline to dismiss the motions at the outset, I will consider the timing of the motions and the implications of the timing of the motions on the issue of costs.
[34] As for the delivery of the Statements of Defence, it is my view that it does not prevent these motions from proceeding. While generally a defendant should move to strike a claim as disclosing no reasonable cause of action before filing a statement of defence, in some instances a defendant may bring such a motion without leave even after delivering a defence. One such instance is where it is obvious from the defendant’s pleading that the defendant takes issue with the sufficiency of the plaintiff’s claim: see Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 14.
[35] In this case, the Defendants have taken issue with the sufficiency of the Plaintiff’s claim in their Statements of Defence. Among other things, the Defendants have pleaded that: they do not owe any duties to the Plaintiff; no cause of action has been identified; the allegations made by the Plaintiff have been adjudicated in the Family Law Proceeding; and the action is frivolous and vexatious and without merit.
C. Abuse of process by relitigation
[36] Under Rule 21.01(3)(d), the court can dismiss an action that “is frivolous or vexatious or is otherwise an abuse of the process of the court”. Rule 25.11 provides for a similar power. As stated by the Court of Appeal in Currie at para. 17:
It is apparent that there is a degree of overlap in the meaning of the terms frivolous, vexatious and abuse of process. What I take from the authorities is that any action for which there is clearly no merit may qualify for classification as frivolous, vexatious or an abuse of process. The common example appears to be the situation where a plaintiff seeks to relitigate a cause which has already been decided by a court of competent jurisdiction.
[37] The Supreme Court of Canada discussed the doctrine of abuse of process in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 paras. 35, 37-38, 42 (“CUPE”) and stated that judges have an inherent and residual discretion to prevent an abuse of the court’s process. Pursuant to the doctrine of abuse of process, the court has the discretion to prevent relitigation for the purpose of preserving the integrity of the court’s process and preventing the violation of the principles of judicial economy, consistency, finality and the integrity of the administration of justice. In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts. See CUPE at paras. 35, 37-38, 42, 43.
[38] The Supreme Court of Canada stated the following with respect to abuse of process by relitigation in CUPE at para. 52:
[…] It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. […]
[39] Similar concerns arise with respect to proceedings that have been qualified as “vexatious”. The Court of Appeal has identified the following characteristics of vexatious proceedings (see Currie at para. 11):
a. the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitute 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.
[40] Before turning to the application of these principles to the facts of this case, I note that the court’s authority to dismiss or stay an action under Rule 21.01(3)(d) should only be exercised in the clearest of cases: see Currie at para. 18.
D. Application to this case
[41] As stated above, the Plaintiff’s claims are based on the alleged premise that the amount of arrears claimed was incorrect, in part because Ms. Goldenfajn-Abrahams had money available for support from “pre-paid support”. Thus, to be successful in this action, the Plaintiff would have to show that there were no arrears or, at a minimum, that the arrears claimed were wrong and that FRO had no basis to take enforcement steps.
[42] The accuracy of the arrears and FRO’s ability to take enforcement steps have been raised a number of times already in the Family Law Proceeding, including:
a. in the Plaintiff’s motion for a refraining order to prevent FRO from taking certain enforcement actions that was heard by Justice Sanfilippo, where the Plaintiff argued, among other things, that he ought to be credited for amounts that had been paid or were available to Ms. Goldenfajn-Abrahams (i.e. the “pre-paid support”). This argument was rejected as Justice Sanfilippo found that: (i) the Plaintiff had not established facts in support of any explanation why he had not paid the child support that he was ordered to pay; and (ii) his submissions concerning the special expenses did not establish a prima facie case relative to the entirety of the obligation;
b. in the Plaintiff’s second motion for a refraining order to stay the enforcement actions of FRO that was heard by Justice Nikishawa, which was dismissed as the Plaintiff had not demonstrated a prima facie case for variation;
c. in the default proceeding commenced by FRO that was heard by Justice Pawagi, where the Plaintiff argued “fundamental and fatal inaccuracies in the Director’s Statement of Arrears” and took issue with FRO’s accounting. However, all of the Plaintiff’s arguments were rejected and a default order was entered.
[43] In my view, this is a case where the court’s discretion should be exercised to prevent an abuse of the court’s process and the violation of the principles of judicial economy, consistency, finality and the integrity of the administration of justice. I am satisfied that this is not a case where relitigation would enhance, rather than impeach, the integrity of the judicial system, and that none of the situations identified at paragraph 52 of CUPE (reproduced in paragraph 38 above) have been established in this case. The Plaintiff should not be allowed to relitigate facts and allegations that were raised and addressed in the Family Law Proceeding: Hartmann v. Amourgis, 2009 ONCA 33 at para. 1; application for leave to appeal dismissed: 2009 CanLII 23094 (S.C.C.).
[44] Further, I note that, aside from relitigation, this case has other characteristics that have been identified as characteristics of vexatious proceedings (see paragraph 39 above), including the following:
a. the Plaintiff has failed to pay the costs of unsuccessful proceedings and, by the time of the hearing of this motion, he was in arrears of more than $20,000;
b. the Plaintiff’s issues with respect to the accuracy of arrears were “rolled forward” into subsequent proceedings and repeated and supplemented. However, since it is clear from the various orders and endorsements that the Plaintiff has never fully complied with his obligation to pay support, the precise amount of arrears is, ultimately, neither here nor there with respect to FRO’s ability to take enforcement measures (as pointed out by Justice Sanfilippo in his endorsement);
c. the Plaintiff has sued his former spouse’s lawyer, i.e. Ms. Roll; and
d. the Plaintiff has brought a number of unsuccessful motions against FRO and Ms. Goldenfajn-Abrahams.
[45] In light of the foregoing, I am satisfied that this is one of the clearest of cases where the court should exercise its authority to dismiss an action under Rule 21.01(3)(d) of the Rules of Civil Procedure. Given my conclusion under Rule 21.01(3)(d), I do not need to deal with the Defendants’ submissions that the Statement of Claim should be struck under Rule 21.01(b) on the ground that it discloses no reasonable cause of action.
CONCLUSION
[46] The Defendants’ motions are granted and this action is dismissed.
[47] If costs cannot be agreed upon, the Defendants shall deliver submissions of not more than three pages (double-spaced), excluding the bill of costs, within 14 days of the date of this endorsement. Ms. Roll’s submissions must comply with the decision of the Court of Appeal in Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228. The Plaintiff shall deliver his submissions (with the same page limit) within 14 days of his receipt of the Defendants’ submissions.
Vermette J.
Date: January 24, 2022
[^1]: I note that the Plaintiff has not attacked the constitutional validity of the federal statute that allows a provincial enforcement service to apply for a federal licence denial with respect to debtors in arrears under a support order: Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.). The relevant provision of this statute, section 67, was found to be constitutional in F.C. v. Canada (Attorney General), 2010 QCCS 622.
[^2]: The delay to take into account with respect to FRO may be shorter given the fact that leave of the court is required pursuant to section 17(2) of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 for an action against the Crown to proceed if the action includes a claim in respect of a tort based on bad faith. Leave was ultimately waived by FRO in 2021.