[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): McIntosh-Berry v. Kim, 2022 ONSC 6637
COURT FILE NO.: FS-20-15651
DATE: 2022/11/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Natasha McIntosh-Berry, Applicant
AND
Anita Kim, Respondent
BEFORE: Justice S. Corthorn
COUNSEL: Adan McIntosh, Self-represented (non-party)
No one appearing for the parties
HEARD: In Chambers
ENDORSEMENT
Introduction
[1] The parties to this litigation are Natasha McIntosh-Berry and Anita Kim. Adan McIntosh is a non-party to the proceeding. Mr. McIntosh filed two notices of motion for leave to appeal from decisions rendered in this proceeding. Mr. McIntosh seeks relief with respect to (a) a July 4, 2022 endorsement of Justice Sutherland (“the July endorsement”), and (b) a September 22, 2022 endorsement of Justice Coats (“the September endorsement”).
[2] I will deal with Mr. McIntosh’s two notices of motion based on the chronological order in which Justices Sutherland and Coats made their respective endorsements.
The July Endorsement
[3] In the July endorsement, Justice Sutherland determined two motions. First, he dismissed Ms. McIntosh-Berry’s motion for contempt. Second, he determined the terms pursuant to which Ms. McIntosh-Berry would be permitted to have “physical visitation”, over a single, fixed, three-day period, with the four children who were the subject of the motion. That three-day period ran from July 4, 2022 at 7:00 p.m. to July 6, 2022 at 2:00 p.m.
[4] The terms pursuant to which Ms. McIntosh-Berry was permitted to have physical visitation with the children included that Mr. McIntosh “shall not be present or in the vicinity of the children while [Ms. McIntosh-Berry] has visitation with the children and the children are in her care. This means that [Mr. McIntosh] shall remain at least 200m away from the children”: see para. 2(b)(ii) of the July endorsement.
[5] In the July endorsement, Justice Sutherland refers to Mr. McIntosh as “the father”. Justice Sutherland does not identify the nature of Ms. McIntosh-Berry’s relationship to the children. The endorsement provides for a single, fixed, three-day visitation period; it does not provide for any other visitation for Ms. McIntosh-Berry with the children.
[6] In a notice of motion for leave to appeal, dated October 25, 2022, Mr. McIntosh seeks relief related to the July endorsement. Specifically, Mr. McIntosh requests “[an] order to set aside, or declare as null, the endorsement of Justice Sutherland dated July 4, 2022, and any associated costs.”
[7] I will deal first with the form of the document filed by Mr. McIntosh and then with the substantive content of the document.
a) The Form of the October 25, 2022 Notice of Motion for Leave to Appeal
[8] The title of proceeding is incorrect. Ms. McIntosh-Berry (the applicant) and Ms. Kim (the respondent) are described collectively as the “Responding Parties”. Their names appear together. Mr. McIntosh includes his name in the title of proceeding (i.e., as a party) and describes himself as the “Moving Party”.
[9] The title of proceeding refers to the court file number for this proceeding in the Superior Court of Justice (FS-20-15651). Also included is Superior Court of Justice court file no. FS-19-12193. In that proceeding, Ms. Kim is the applicant and Mr. McIntosh is the respondent. For reasons of which I am unaware, the July endorsement includes the 2019 court file number. Regardless, the relief sought in Mr. McIntosh’s October 25, 2022 notice of motion for leave to appeal relates to relief granted in the proceeding in which only Ms. McIntosh-Berry and Ms. Kim are the parties (i.e., Court File No. FS-20-15651).
[10] The notice of motion for leave to appeal is identified as being brought in Divisional Court. That court is, however, described incorrectly in the title of proceeding. The title of proceeding does not include a Divisional Court file number; instead, the court file number in that court is set out as, “TBA”. That term is not explained in the body of the document.
[11] I therefore treat the motion set out in the October 25, 2022 notice of motion as a motion brought in this proceeding.
[12] The notice of motion for leave to appeal is addressed to an individual described as the lawyer for Ms. Kim. The lawyer’s address is included; no other contact information, such as the lawyer’s email address or telephone number is included. There is no evidence that the notice of motion for leave to appeal was served on Ms. Kim by sending a copy of the document to either her, personally, or her lawyer.
[13] The notice of motion for leave to appeal is not addressed to Ms. McIntosh-Berry. There is no evidence that the document was served on Ms. McIntosh-Berry.
[14] Mr. McIntosh identifies the motion as brought in writing as an opposed motion under r. 37.12.1(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. As explained above, there is no evidence that the notice of motion for leave to appeal was served on either Ms. Kim or Ms. McIntosh-Berry. I find that Mr. McIntosh failed to comply with the requirements of r. 37.12.1(4)(a) and (b) with respect to service of the document on Ms. Kim and Ms. McIntosh-Berry.
[15] I turn next to the substantive content of the October 25, 2022 notice of motion for leave to appeal.
b) The Substantive Content of the October 25, 2022 Notice of Motion for Leave to Appeal
[16] The document filed by Mr. McIntosh is a notice of motion for leave to appeal. Nowhere in the document does Mr. McIntosh identify that the relief sought includes leave to appeal from the July 2022 decision of Justice Sutherland. In summary the relief sought does not accord with the title of the document.
[17] Leaving aside that discordance – and considering the relief sought – Mr. McIntosh seeks relief related to an event which has already transpired. It is now more than four months since Ms. McIntosh-Berry was permitted to have a single, fixed, three-day period of physical visitation with the children from July 4 to 6, 2022. Even if Mr. McIntosh has identified grounds to support setting aside the July 4, 2022 order – which he has not done – no purpose would be served by granting that relief.
[18] To now request that the court deal with an order, the effect of which has come and gone, is an abuse of process.
[19] In addition, in the September endorsement discussed below, Justice Coats determined that as a non-party, Mr. McIntosh could not bring a motion to set aside the July endorsement. Therefore, the request made in Mr. McIntosh’s October 25, 2022 notice of motion for leave to appeal is duplicative of a request previously made and determined. I find that the October 25, 2022 notice of motion for leave to appeal is an abuse of process.
[20] For the reasons set out above, Mr. McIntosh’s motion set out in his October 25, 2022 notice of motion for leave to appeal is dismissed.
[21] I will next address the notice of motion for leave to appeal from the September 2022 endorsement.
The September 2022 Endorsement
[22] In the September endorsement, Justice Coats determined a motion by the non-party, Mr. McIntosh. On his motion, Mr. McIntosh requested that Justice Coats be recused. Mr. McIntosh also sought relief related to the July endorsement.
[23] In the September endorsement, Justice Coats (a) dismissed Mr. McIntosh’s request that Justice Coats be removed, and (b) determined that, as a non-party to the proceeding bearing court file no. FS-20-15651 (i.e., this proceeding), Mr. McIntosh is not entitled to bring a motion to set aside the July endorsement of Justice Sutherland.
[24] In response to the September endorsement, Mr. McIntosh filed “a notice of motion for leave to appeal”. That document is dated October 3, 2022. I shall once again deal with the form of the document and thereafter its substantive content.
a) The Form of the October 3, 2022 Notice of Motion for Leave to Appeal
[25] The title of proceeding refers to the Ontario Court of Appeal as the court in which the motion for leave to appeal is to be made. Yet, the court file number included in the title of proceeding is “FS-20-15651” (i.e., this proceeding in this court). No court file number for the Ontario Court of Appeal is included in the title of proceeding.
[26] With the only court file number identified in the document being the one in this court for this proceeding, the motion set out in the October 3, 2022 notice of motion for leave to appeal is determined in the context of this proceeding.
[27] Notably, the title of proceeding identifies Mr. McIntosh as the “Moving Party” and Anita Kim as the “Responding Party”. Ms. McIntosh-Berry is not identified in any way as a party to the proceeding.
[28] Leaving aside the deficiencies in the form of the October 3, 2022 notice of motion for leave to appeal, I turn to the substantive content of the document.
b) The Substantive Content of the October 3, 2022 Notice of Motion for Leave to Appeal
[29] Mr. McIntosh seeks leave to appeal the order of Justice Coats, dated September 22, 2022. He requests no other form of relief.
[30] Mr. McIntosh’s motion for leave to appeal from the September 2022 order of Justice Sutherland is dismissed for the following reasons:
a) Mr. McIntosh is not a party to the proceeding in this court. Unless Mr. McIntosh first obtains leave of the court to file documents in this proceeding, he has no standing to do so;
b) The October 3, 2022 notice of motion for leave to appeal does not comply with the requirements of r. 4.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to the contents generally of court documents;
c) The document does not include the name of and contact information for Ms. McIntosh-Berry – one of the parties to the proceeding. As a party to the proceeding, Ms. McIntosh-Berry is, unless the court orders otherwise, entitled to notice of steps in the proceeding. There is nothing in the record to suggest that an order was made dispensing with the requirement for service of documents on Ms. McIntosh-Berry;
d) There is no evidence that the notice of motion for leave to appeal dated October 3, 2022 was served on Ms. Kim; and
e) The notice of motion for leave to appeal dated October 3, 2022 is an abuse of process.
Disposition
[31] Sitting as a judge in this Superior Court of Justice proceeding, for the reasons set out above, the court makes the following order:
The motion set out in the October 25, 2022 notice of motion for leave to appeal, with respect to the order of Justice Sutherland dated July 4, 2022, is dismissed.
The motion set out in the notice of motion for leave to appeal dated October 3, 2022, with respect to the order of Justice Coats dated September 22, 2022, is dismissed.
Mr. McIntosh shall not be entitled to seek any motion or other event date, including for a motion or other event to proceed in writing, with respect to Court File No. FS-20-15651, unless he first obtains leave to do so from this court.
Unless the court orders otherwise, the court staff in the Superior Court of Justice shall not accept any further documents from Mr. McIntosh with respect to Court File No. FS-20-15651 unless the documents,
a) include the correct title of proceedings;
b) are in the form of a motion record;
c) the motion record is for a motion for leave to file documents;
d) the notice of motion identifies the specific step within the proceeding that Mr. McIntosh wishes to pursue and the grounds upon which he relies in support of his alleged entitlement to pursue; and
e) the motion record includes a supporting affidavit, duly sworn, and the exhibits referred to therein.
- Unless the court orders otherwise, the motion for leave to file documents shall not be added to the court schedule unless Mr. McIntosh files an affidavit of service evidencing service, in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, of the motion record on the parties to the proceeding (i.e., Ms. McIntosh-Berry and Ms. Kim).
[32] The court is not aware of either Ms. Kim or Ms. McIntosh-Berry filing any documents in response to the two motions for leave to appeal. Therefore, both motions are dismissed without costs.
[33] If Mr. McIntosh intends to pursue relief from an appellate court, it is incumbent upon him to familiarize himself with (a) the Rules of Civil Procedure relevant to appeals from decisions of the judges of the Superior Court of Justice, and (b) the procedures to follow with respect to the commencement of a proceeding in the Court of Appeal and/or the Divisional Court. It is also incumbent upon Mr. McIntosh to comply with the Rules of Civil Procedure and to follow the procedures in the appellate level courts.
Madam Justice S. Corthorn
Date: November 25, 2022
[CITATION](http://intra.judicialsecurity.jus.gov.on.ca/NeutralCitation/): McIntosh-Berry v. Kim, 2022 ONSC 6637
COURT FILE NO.: FS-20-15651
DATE: 2022/11/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Natasha McIntosh-Berry, Applicant
AND
Anita Kim, Respondent
BEFORE: Justice S. Corthorn
COUNSEL: Adan McIntosh, Self-represented (non-party)
No one appearing for the parties
ENDORSEMENT
Madam Justice S. Corthorn
Released: November 25, 2022