Court File and Parties
Court File No.: FC-19-1561-1 Date: 2024/08/23 Ontario Superior Court of Justice
Between: Damara Mia Anthony, Applicant And: Ryan Montgomery Ward, Respondent
Counsel: Erin Macdonald, for the Applicant Respondent, Self-Represented
Heard: June 18, 2024
Reasons for Judgment
On Motion to Change Parenting Order
SOMJI J
[1] The Respondent father Mr. Ward brings a Motion to Change the Final Parenting Order of Justice Engelking dated June 9, 2023, issued on consent of the parties, on the grounds that his bail conditions have changed (“Parenting Order”). The father wishes to have increased and unsupervised parenting time with the parties two children ages 7 and 9 in the community rather than supervised parenting time at his residence.
[2] The Applicant mother opposes the motion arguing that the father’s bail conditions were considered when the parties agreed to the terms of the Parenting Order and his change in bail conditions do not constitute a material change in circumstances to warrant a new parenting schedule, and even if they did, a variation of the Parenting Order is not in the children’s best interests. Additionally, the mother seeks a declaration that the father is a vexatious litigant and an order that the father be precluded from filing any further motions to change until he has taken some steps to comply with the Parenting Order including payments of outstanding costs of $25,000 and child support.
[3] The issues to be decided are:
A. Has there been a material change in circumstance?
B. If so, is a variation in the best interest of the child? and
D. Is the Respondent a vexatious litigant, and if so what remedy is appropriate?
Procedural History and Evidence filed in Support of the Motion
[4] The parties separated in 2017. In May 2023, they were in a 10 day trial on parenting issues. On the ninth day, the father was arrested for breach of bail conditions related to criminal charges from 2022. The trial folded and proceeded to a settlement conference. At that time, the father was under house arrest and residing with his present surety, but able to participate in the family law proceedings. The father entered into the Parenting Order which provided the mother decision-making responsibility and primary residence of the children. The father consented to virtual parenting time and in-person parenting time at his residence for four hours/month.
[5] On October 24, 2023, the father brought this Motion to Change and served it on the mother on November 8, 2023. The Motion to Change was initially scheduled to be heard on December 11, 2023, but the father failed to attend the hearing.
[6] During a follow-up case conference on February 20, 2024, Engelking J informed the parties to set down a new date for the Motion to Change. Instead, the father brought a motion for Determination of Urgency on April 2, 2024, on an ex parte basis. AJ Fortier determined the matter required notice to the mother.
[7] At a further case conference of April 9, 2024, Engelking J ordered the father to contact the family counter by email with a copy to the mother’s counsel and confirm that he had prepared and filed all the materials for the motion. The father did not adhere to this order either. Instead, he book the motion in-person at the courthouse and avoided copying the mother’s counsel. The mother’s counsel received correspondence from the father offering a motion date of April 11, 2024, but did not receive the father’s materials. The mother only received materials on April 15, 2024 even though the father had stated they were served on April 12, 2024. The mother’s counsel requested court staff to copy her on all future correspondence with the father.
[8] In support of his Motion to Change, the father relies on his Notice of Motion and Affidavit dated April 11, 2024. The father’s Affidavit sets out his request for an increase in parenting time and change in conditions for that parenting time, but does not include supporting exhibits such as a copy of his current and changed bail conditions. During the motion hearing of June 18, 2024, I requested the father provide the following documents by July 10, 2024, to assist me in adjudicating the issues before the court:
a. Any updated information reflecting his bail conditions beyond the bail variation of October 11, 2023 (filed by the mother);
b. An updated Financial Statement; and
c. The father’s 2023 Income Tax Return and Notice of Assessment
[9] The father did not file any of the materials.
[10] The mother has filed in response to the Motion to Change an Affidavit of June 11, 2024, supporting exhibits, as well as a Factum.
Issue 1: Has there been a material change in circumstances?
[11] Section 29(1) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. reads as follows:
Variation of orders
29 (1) A court shall not make an order under this Part that varies a Parenting Order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.
[12] The Supreme Court of Canada decision in Gordon v. Goertz at para 9 sets out a two-stage process for the court for variation of an order relating to parenting time:
a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
[13] The father attests that there has been a change in his current release conditions where he is no longer on house arrest and allowed to move freely without a surety. He also argues that his current residence is not an appropriate place for the children to visit.
[14] The father has not provided any evidence in support of the above-noted claims. His bail variation of October 11, 2023 continues to require him to reside with his surety Rob Hammerschmidt, at the same address and with the same surety he had at the time he consented to the Parenting Order. His bail conditions continue to require him to be in his residence at all times except for travelling to and from work or while visiting with or in the presence of his children.
[15] While the bail variation of October 11, 2023, suggests that the father need not be in his residence while visiting the children, this term contradicts his current Parenting Order which states as follows:
Effective immediately, the Respondent shall have parenting time with the children for four hours per month, with time and date to be set by no later than the 5th day of each month. This parenting time shall occur at his residence, and pursuant to the terms of his conditions of release. The Respondent shall be responsible for transporting the children to and from these visits, unless mutually agreed otherwise. [Emphasis mine]
[16] Clauses 5 to 8 of the Parenting Order contemplate the father moving toward increased and unsupervised parenting time following the resolution of his criminal charges. I understand from the father’s submission that his criminal trial is scheduled for September 2024.
[17] The mother indicates that based on concerns about the father’s past conduct, including several incidents where he failed to adequately supervise the children, she would not have agreed at the time of the settlement negotiations to parenting time outside the residence or unsupervised visits in the community. She described an incident in the summer of 2018 where the children were found wandering down the street by a neighbour when he was to supervise them. There were two further incidents in August 2022 when the father lost one child at the Museum of Technology and later the same day, another child at Mooney’s Bay.
[18] The mother attests that even before the Parenting Order, the father had an inconsistent presence in the children’s lives and frequently disappeared for extended periods of time. He has not had an overnight with the children since the parties’ separation. She understood when she agreed to the father’s parenting time at the settlement conference that the visits would take place at the surety’s residence where there would be two adults and two children. It is for this reason that she did not include a further express term for supervision at all times.
[19] When the mother learned in September 2023 that the father was not abiding by the residency requirement for the parenting visits, she informed him that he was in breach of the Parenting Order. The father maintained his position that he would not have his parenting time at the surety’s home. The mother informed him that if he was to be in the community with the children, his surety needed to be present. Based on the mother’s affidavit, it does not appear the father has abided by the residency clause or ensured supervision when outside the community. For example, according to one of the children, the surety was in attendance when the father took them to the Carp Fair in October 2023, but then left them alone.
[20] The Final Order was entered into with the father’s consent. The father agreed to the residency clause for the parenting visits. He was living at the time with his surety. There were two other adults and two young children at the home. Those circumstances have not changed. While the father would prefer to be in the community, that is not the term that was agreed upon by the parties.
[21] The father has also failed to present any evidence why the residence remains an unsuitable place for parenting visits or that there has been a change in the residency provisions of his bail conditions that would make it difficult to exercise his parenting time at the residence. I find the father has not established a material change in circumstances warranting a review of the Parenting Order.
Issue 2: Is a variation in the best interest of the children?
[22] Even if I am incorrect and there has been a change in material circumstances, I find that variation in the conditions of the father’s parenting time are not in the best interests of the children. In arriving at this conclusion, I have relied on all the factors set out in s. 24(3) of the CLRA but refer below to only those most pertinent to this matter.
[23] First, the children are young and require consistency and stability: 24(3)(a). As per the mother’s affidavit, the father has a lengthy history of missed parenting visits and disengagement with the children for extended periods. This year alone he missed visits with the children in February, March, April, and May and made no effort to book parenting time in June 2024. The Parenting Order allows for the father to call the children every Tuesday but he has not called them once. Even though the Final Order contemplated increased parenting time, there is no evidence that the father is able to comply with the current parenting time of four hours per month. One of the children is also autistic and requires an elevated level of care. I find that to allow for a new parenting schedule and at unknown locations is highly disruptive to the children.
[24] Second, there is evidence that some of the parenting visits have been difficult for both the children and the father. For example, during the October 2023 visit, the father returned the children after 20 minutes of his four hour visit because one of the children was having a meltdown. The mother indicates the children have been resistant to going on visits. I find that the children’s views and preferences must be further and carefully considered before any significant changes are to be made to the parenting schedule: 24(3)(e).
[25] Third, the father has not demonstrated he would comply with a court order and cooperate and communicate with the mother in matters affecting the children: 24(3)(i). For example, the father breached the residency terms of the order and ignored the mother’s requests for supervision if in the community with the children. The father has allowed his Our Family Wizard account to expire limiting the mother’s ability to effectively communicate with him. The mother’s text messages to the father clearly indicate that the father is not diligent in organizing his parenting time with the children as required to do so by the 5th of every month despite her best efforts to accommodate his or his surety’s schedule.
[26] Finally, there is a history of domestic violence in the party’s relationship: 24(3)(j). While the mother supports the father having a continued relationship with the children, she has concerns that his motivation in bringing this Motion to Change is less about the children’s best interests given his failure to exercise the parenting time he now has and more about continuing to exert coercive control over her.
[27] For all these reasons, I find a variation in the Parenting Order is not in the best interests of the children. The father’s Motion to Change the Parenting Order is dismissed.
Issue 3: Is the Respondent a vexatious litigant, and if so what is the appropriate remedy?
[28] The mother seeks an order that the father be declared a vexatious litigant and that he be required to obtain leave before filing any further proceedings against the mother.
[29] Section 140(1) of the Courts of Justice Act, R.S.O. 1990, c.C.43, as am, provides the Superior Court with the power to deem a party vexatious and order that no further proceeding be instituted by that party without leave from a Superior Court judge. The provision reads:
140 (1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,
(a) instituted vexatious proceedings in any court; or
(b) conducted a proceeding in any court in a vexatious manner,
the judge may order that,
(c) no further proceeding be instituted by the person in any court; or
(d) a proceeding previously instituted by the person in any court not be continued,
except by leave of a judge of the Superior Court of Justice.
[30] As held in Re Lang Michener and Fabian , [1987] OJ No. 355 and affirmed recently by Justice Marc Smith in Kaufman LLP v Kechichian, 2021 ONSC 1173 (Ont. S.C.J.) at para 27 ,the factors to consider in determining if a litigant is vexatious are:
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 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.
[31] In this case, I find that the father is a vexatious litigant for the following reasons.
[32] First, the father brought this Motion to Change for which there was limited prospect of success given his failure to provide sufficient evidence to demonstrate that his bail conditions had been changed in any manner that would demonstrate a material change in circumstances and in a situation where he was seeking to augment his parenting time while unable to comply consistently with the parenting time set out in the existing Parenting Order.
[33] Second, the father’s conduct in this proceeding has been vexatious. The father failed to attend the initial motion hearing date in December 2023, then attempted to thwart notice to the mother by filing an ex parte urgent application, and then further attempted to book a motion date without proper service of materials or notice to opposing counsel. The Applicant was untruthful when he indicated the materials had been served to the mother’s counsel when they had not.
[34] Third, the father’s failure to even take steps to pay outstanding costs is further evidence of vexatious conduct. The father’s conduct has resulted in a significant financial strain on the mother. She has spent $94,000 over four years of litigation including the 9-day trial and settlement conference that resulted in the Parenting Order. The father was ordered to pay $25,000 in costs for the trial and has not made any payments. As discussed further below, the mother has incurred further costs of $14,398 to address this Motion to Change further adding to her financial burden.
[35] Furthermore, the mother is supporting the parties two children and a third child with little financial support from the father. The father has failed to pay the full amount of ongoing child support. While the Parenting Order requires him to pay $1,284/month, he only pays $363/month. His child support arrears are accumulated to $15,339 and his driver’s licence has now been suspended by the Family Responsibility Office. He does not contribute to s. 7 expenses. While the court is cognizant of the fact that the father may be limited in his ability to contribute financially because of his present criminal charges, the father has not provided financial disclosure requested by opposing counsel and the court to assist the court in assessing his financial circumstances.
[36] For all these reasons, I find the father is a vexatious litigant pursuant to s. 140 CJA.
[37] An order pursuant to s. 140 CJA does not strip a person of their right to bring legal proceeding but provides for judicial supervision of a party's use of the courts to ensure there is a reasonable basis for any proceeding: Kaufman LLP at paras 30 and 72 ; Dobson v Green, 2012 ONSC 4432 at para 8. In this case, I find that the appropriate remedy is that the father must obtain leave of the court to institute further proceedings against the mother. This ensures that the mother does not incur further significant legal costs until and unless the court can consider the merits of the father’s requests.
[38] In arriving at this decision, I am aware that the father’s criminal trial is proceeding in September 2024 and that his personal circumstances may change following the trial. However, as already noted, the existing Parenting Order contemplates a change in the father’s parenting time with a graduated schedule for increased and unsupervised parenting time upon conclusion of the father’s criminal matters. If the father is required is sentenced to custody following the criminal trial, the Parenting Order also allows and stipulates terms for the exercise of parenting time.
Costs
[39] The mother seeks full recovery costs in the amount of $14,398 plus $500 reserved in the cause by Engelking J following the case conference of April 9, 2024.
[40] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Rule 24 of the Family Law Rules sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.
[41] As the successful party on the motion, the mother is presumptively entitled to costs.
[42] In determining costs, the parties and court must consider that modern costs rules are designed to foster four fundamental purposes: 1) to partially indemnify successful litigants; 2) to encourage settlement; 3) to discourage and sanction inappropriate behaviour by litigants; and 4) to ensure, as per r. 2(2), that cases are dealt with justly: Mattina at para 10.
[43] The court may order costs on a full recovery basis as per r. 24(8) which reads as follows:
24.(8) BAD FAITH—If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.
[44] Bad faith is a high threshold. It is not synonymous with bad judgment or negligence; rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: see: Scipione v Scipione, 2015 ONSC 5982, at para. 96.
[45] I find the father engaged in bad faith conduct when upon being directed to set a new motion date, he attempted to circumvent notice to the mother by filing an ex parte urgent motion. I also find the father brought a motion that was unlikely to succeed given he was unable to furnish evidence of a material change in circumstances and sought to increase parenting time when he was not even consistently exercising the parenting time he had. The father’s failure to appear at the initial hearing resulted in costs thrown away by the mother.
[46] The motion was not complex, but did address several issues. It was significant to the parties as it concerned parenting time that was in the best interests of the children. The corollary issue of whether the father is a vexatious litigant was also important to the mother to minimize the continued financial burden of the father’s litigation proceedings.
[47] Lead counsel charged 200/hr (2023 call) and senior counsel assisted at $325/hr (2013 call). I find the rates are reasonable and align with counsel’s experience. Counsel spent a total of 65 hours preparing and attending for the motion. Given the length of these proceedings dating back to November 2023, the number of court appearances, and the pleadings required to effectively respond to the father’s Motion to Change, I find the billings are commensurate with the work performed and were necessary to adequately address all the issues raised.
[48] While full recovery costs are warranted, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371, at para. 11 ; M.(A.C.) v M (D.) (2003), 67 O.R. (3d) 181 (C.A.), at para. 45.
[49] The ability or inability to pay may affect the quantum of costs awarded and even time to pay, but it does not necessarily foreclose a costs award. Costs are not to be denied to the successful party where there is no evidence that the unsuccessful party is impecunious: Levan v Levan at paras 36 to 39. In this case, the father has not provided evidence that he is impecunious. There is some suggestion that he was and is still employed. He was not forthcoming with financial disclosure including his most recent income tax return and Notice of Assessment. Having said this, I have considered that the father has ongoing child support payments, child support arrears, and outstanding costs to pay.
[50] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para 26.
[51] Having considered that the mother was the successful party, the father’s bad faith conduct, complexity, the billings and rates, and the father’s ability to pay, I find that costs award in the fixed amount of $12,500 is fair and reasonable.
Order
[52] There will be an Order as follows:
The Respondent father’s Motion to Change is dismissed.
The Respondent father shall pay fixed costs of $12,500 to the mother within 30 days.
Somji J.
Released: August 23, 2024