Kim v. McIntosh, 2024 ONSC 7257

COURT FILE NO.: FS-12193-19 DATE: 2024/12/31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anita Kim, Applicant AND: Adan McIntosh, Respondent

BEFORE: Justice L. Bale

COUNSEL: Parties are self-represented

HEARD: November 21, and 29, 2024

Endorsement

1The only issue for determination on this motion is whether the Respondent father, Mr. McIntosh, should be granted leave to bring a motion for multiple requests for relief.

Background

2The Applicant mother, Ms. Kim, commenced a court application in or around September 2019. At the heart of the case are four minor children who reside in Ms. Kim’s primary care. A Final Order was made by Steele J. on October 1, 2021. The Respondent was unsuccessful in his appeal of that decision to the Ontario Court of Appeal.¹

3The Respondent commenced a Motion to Change proceeding (re: the Final Order of Steele J.) in or around June 2023. A Final Order was made by Engelking J. on July 12, 2024, which dismissed the Respondent’s Motion to Change. The Respondent advises the court that this decision is presently under appeal.

4The litigation case history is complex. It is unnecessary to extensively detail the various paths and detours that have brought the case to this point.² Sufficed to say, this case has been a morass of motions, appeals, and related civil cases, all of which have culminated in the requirement for leave that is the subject-matter of this motion.

5There is presently no active and ongoing case before the court.

6Notwithstanding that all issues have been resolved on a final basis, subject to appeal, the Respondent has filed a Notice of Motion dated September 22, 2024, wherein he seeks leave to address the following issues:

1. The recusal of Justice N. Somji, Justice T. Engelking, Justice R. Ryan Bell, Justice S. Corthorn, Justice J. Audet, and Regional Senior Justice C. MacLeod;
2. The setting aside of the endorsement of Regional Senior Justice C. MacLeod dated April 12, 2024;
3. The setting aside of the endorsement of Justice N. Somji dated August 9, 2024;
4. The hearing of this case in the Toronto Region;
5. The enforcement of the Order of Justice J. Steele dated October 1, 2021; and
6. An order that the children attend school.

7In considering this decision, I have reviewed only the evidence contained within the Respondent’s Motion Record and Memorandum of Law, and the oral submissions provided by each party.

The Requirement for Leave

8Historically, multiple orders have been made during the life of this court file, which have prevented the Respondent from bringing motions for temporary relief without leave of the court:

1. Within the original court proceeding, on December 2, 2021, Hood J. heard a Form 14B chambers motion brought by the Applicant. The court made findings that “the respondent has a history of ignoring court orders. Order to go that until this award of costs is paid the respondent shall not be entitled to any further orders of this court without first obtaining leave”. As a result, the court ordered that:

   The respondent is not entitled to seek any future motion date from the court or to bring or file any notice of motion, unless it is a motion that only seeks leave of the court to bring a further motion Order to go that any motion seeking leave of the court must be on a minimum of 30 days’ notice to the applicant rather than the 6 days as provided for in the FLR 14(11).

2. Within the motion to change proceeding:

   a. On October 3, 2022, Smith J. made an Order that provided:

   Pursuant to the primary objective of the FLR to deal with cases justly, and in particular Rule 2(5)(d), court staff are ordered not to accept any further materials from the respondent Adan McIntosh, unless it is a motion, brought with thirty (30) days notice to the applicant, for leave to bring a further motion.

   b. On September 11, 2023, Somji J. found that the Smith J. restriction continued to apply, and opined as follows: see Kim v. McIntosh, 2023 ONSC 5121,

   [80] Smith J.’s order requiring the father to seek leave with 30 days’ notice to bring a motion is an appropriate exercise of the judicial case management powers under r. 2(5) FLR and is warranted given the conduct and history of the father’s litigation. Such an order is necessary to manage the onslaught of the father’s motions so that the family litigation as against the mother, particularly now that the final Parenting Order has been put in place, is just in fair.

   c. On April 12, 2024, MacLeod R.S.J. further ordered that “No further motions are to be brought pending the return of the motion to change”: see Kim v. McIntosh, 2024 ONSC 4388 (“McIntosh (2024 ONSC)”), at para. 8

9These orders were all interlocutory in nature.

10This case was concluded upon the dismissal of the Respondent’s Motion to Change by Engelking J. on July 12, 2024. Normally upon final disposition of a case all interlocutory orders are ‘spent’. However, “case”, as defined under the Family Law Rules, O. Reg. 114/99 (the “FLR”) “means an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals” (emphasis added).

11The Respondent’s motion, in part, articulates a request to compel the Applicant to comply with the substantive terms of the Final Order of Steele J. That is, the motion appears, in part, to contain an element of enforcement. Accordingly, I conclude that the interlocutory order in place, which requires the Respondent to obtain leave on 30 days notice prior to the commencement of motions, remains in effect as it relates to this motion. I am confident that this interpretation does not run afoul of the reasoning of the Court of Appeal for Ontario in Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320.

The Test for Leave

12There is no established test under r. 2(5) of the FLR, or by analogy under r. 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which must be applied in considering requests for leave required by court orders made pursuant to these provisions.

13The Respondent correctly identifies that he has never been declared a vexatious litigant, pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). As such, the test found in s. 140(c), of the CJA, which provides that “leave shall only be granted if the court is satisfied that the proceeding is sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding”, is informative in nature only: see Huang v. Braga, 2020 ONCA 645, at para. 16.

14Courts tasked with determining leave motions, hold a gate-keeping function. In the context of limitations placed on litigants pursuant to procedural powers under r. 2(5) of the FLR, leave motions should be viewed as screening mechanisms – alive to the important balance between the right to be heard and the prevention of misuse of the court process. Leave should be granted where it is in the overall interests of justice to do so. Determination of the interests of justice should include consideration of the context and merits of the motion, and an overall balancing of interests. More specifically, the court should consider:

1. The offensive or targeted litigation conduct that compelled the requirement for leave and the need to discourage that conduct;
2. A preliminary or threshold assessment of the merits of the relief sought by the moving party; and
3. A balancing of the individual interests of the litigants and the interests of public.

1. Context

15It is clear that the requirement for leave, imposed in this case, was designed to control the progress of the case in response to an identified concern regarding the Respondent’s litigation conduct: the bringing of excessive and often meritless motions while at the same time disregarding orders of the court that were not to his advantage.

16On May 26, 2022, in dismissing the Respondent’s motion for leave to appeal the original leave requirement (the Order of Hood J. dated December 2, 2021), Audet J., sitting as a single judge of the Ontario Superior Court of Justice, Divisional Court, found the following: see Kim v. Mcintosh, 2022 ONSC 3173,

15… [The Respondent’s] litigation conduct has been a clear abuse of this Court’s process. Mr. McIntosh’s relentless appeal of every single order made by the court in the various legal proceedings initiated by him before this Court is a continuation of the frivolous and abusive behaviour reported by Hood J. in his December 2, 2021 endorsement. His relentless and meritless appeals, coupled with his ongoing accusations towards the Court and its staff are taking away valuable judicial time and resources from the other deserving litigants. This behaviour on the part of Mr. McIntosh cannot possibly be condoned by the Court.

17On May 18, 2023, on appeal to the Court of Appeal for Ontario, Doherty J.A., in McIntosh (ONCA), opined as follows:

4Unfortunately, the proceedings have been marred by the appellant’s repeated non-compliance with numerous court orders and a seemingly interminable stream of motions and appeals brought by the appellant at various court levels.

18Most recently, on July 12, 2024, Engelking J. found as follows: see McIntosh (2024 ONSC), at para. 3, Mr. McIntosh has also failed to act in the best interests of the children by engaging in constant, unending, unrelenting, often frivolous, and sometimes vexatious litigation. By doing so, he has taken away from Ms. Kim’s ability to meet the needs of the children, not only financially, but emotionally and physically. She is completely drained by five years of non-stop litigation.

2. Merits

19An inquiry into the merits of a motion should be limited to a preliminary assessment only. The moving party should, on the strength of the Affidavit materials filed, be able to establish that there is some potential merit or some reasonable prospect of success on the issues raised. This is not a high threshold.

(a) Request for Hearing in Toronto

20There is no merit to the Respondent’s request for an order “for leave to have this matter heard in (sic) Toronto Region”.

21This case was started in the Superior Court of Justice in Toronto. In February 2022, the Associate Chief Justice of the Superior Court, in her capacity as head of the Divisional Court, directed that all Divisional Court proceedings relating to any of the Respondent’s matters be heard by judges from outside of the Toronto region. The Regional Senior Judge of Toronto made a similar order in respect of this family court case.

22Within his Affidavit, the Respondent states “I do not wish to (sic) abused by the judges of East Region any longer and although Justice McWatt removed all the judges of the Toronto region from the case, I would rather be before them and any potential bias there, than to continue to be subjected to the abuse of the judges of the East Region”.

23Notwithstanding the directions of the Associate Chief Justice and the Regional Senior Judge of Toronto, the matter continues to be a Toronto family court file heard by judges from outside the Toronto region. The powers and duties of the Chief Justice, Associate Chief Justice, and Regional Senior Judges, including the assignment and delegation of judicial duties in the Ontario Superior Court of Justice, are prescribed by the CJA. There is simply no jurisdiction for any judge presiding over a motion in the Superior Court of Justice to override such administrative decisions.

24The relief sought is devoid of merit and has no chance of success.

(b) Requests for Recusals

25The Respondent seeks an order for leave to pursue the recusal of six judges of the East Region from hearing any further steps in this proceeding on the basis of alleged bias. It appears, from the limited record before this court, that the Respondent has brought similar motions relating to dozens of other jurists in Ontario over the past five years. The common thread appears to be that all the identified judges have made findings or orders in this case, or related civil cases, that the Respondent disagrees with.

26The Respondent’s shot-gun approach to potential judicial bias makes little sense. Recusal motions should be heard by the judge being asked to recuse themselves: see Beaver v. Hill, 2019 ONCA 520, at para. 17. As stated by Pazaratz J. in factually similar circumstances: “Courts exist to resolve real disputes between parties. Not to provide opinions in response to hypothetical or academic problems. And certainly not to encourage or facilitate convoluted litigation strategies”: see Beaver v. Hill, 2018 ONSC 7138, at para. 30.

27The relief sought by the Respondent is meritless and will not succeed in current form. It is open to the Respondent to renew his request for recusal if and when the issue is not a hypothetical one. However, the Respondent is urged to rethink this strategy, and is reminded that there is a strong presumption of judicial impartiality, which is not easily displaced: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] S.C.R. 259, at para. 76.

(c) Requests to Set Aside Past Endorsements

28The Respondent seeks leave to bring a motion to set aside the endorsements of MacLeod R.S.J., dated April 12, 2024, and Somji J., dated August 9, 2024:

a. The endorsement of MacLeod R.S.J. dated August 12, 2024, addressed a Form 14B Motion filed by the Respondent wherein he sought an order to (a) set aside an order made by Somji J. adjourning the scheduled trial; and (b) recuse Somji J. from her case management role. MacLeod R.S.J. dismissed the motion and ordered that no further motions may be brought pending the return of the motion to change. It does not appear that the Respondent appealed this decision.

b. The endorsement of Somji J. dated August 9, 2024, denied leave for the Respondent to proceed with a further motion that was commenced by the Respondent while the parties were awaiting the final decision on the motion to change. The motion sought to address 21 issues, for the most part comprised of similar requests for recusals and the setting aside of multiple historic court endorsements. It does not appear that the Respondent appealed this decision.

29The court’s jurisdiction to set aside a family court order is found in r. 25(19) of the FLR, which permits a court to change an order that was (a) obtained by fraud, (b) contains a mistake, (c) failed to deal with a matter, or (d) made without notice or (e) with inadequate notice.

30With respect to the August 12, 2024 endorsement of MacLeod R.S.J., the Respondent does not identify in his supporting Affidavit any enumerated circumstance, as outlined in r. 25(19), which would permit the court to change the terms of an order. A “mistake” cannot be interpreted to include alleged errors of fact. That is an issue for appellate review.

31With respect to the August 9, 2024 endorsement of Somji J., the father argues that the endorsement should be set aside because, on August 4, 2024, the father advised the court office that he would “not be filing a confirmation and do not intend to proceed with (sic) at this time”. The Applicant did not file responding materials. Court staff advised the Respondent that the motion date was vacated, and no judge was assigned. The Respondent asserts that he was therefore surprised to learn that the motion had been dealt with, in writing, by Somji J. An email to court staff that a matter will not proceed does not meet the formal requirements of withdrawing a motion under r. 14(16). Absent service and filing of a notice of withdrawal, the court was entitled to dispose of the motion summarily.

32In oral submissions, the Respondent further articulated his motivation to attempt to set aside past endorsements: he is concerned that past endorsements of the court containing (alleged) factual or reasoning errors will be relied upon by future courts and will result in further compound errors. He takes issue with many of the statements made within the written reasons of judges who have decided various steps of this case. The Respondent’s (repeated) motions to set aside past endorsements of the court are simply ill-fated attempts to circumvent the statutory appeal process. While it is open to the Respondent to appeal court orders he is reminded, moving forward that appeals are against orders, not reasons: see Kerk-Courtney v. Security National Insurance Co., 2024 ONCA 676, at para. 24. The justice system simply cannot accommodate challenges to decisions that do not adhere to these principles.

33All the issues decided by MacLeod R.S.J., and Somji J. are now moot. Although the trial was adjourned, it has now been concluded. As the case has been disposed of on a final basis, there is no provision for further interlocutory motions or further case management. Any substantive relief sought was adjudicated and decided by Engelking J. after the Respondent brought these motions.

34I conclude that there is no merit to the Respondent’s request to set aside the endorsements of MacLeod R.S.J. and Somji J.

(d) Schooling Issues

35The father’s Notice of Motion requests “an order for leave to mandate the children’s to (sic) attendance at school”. Pursuant to paragraph 2 of the Final Order of Steele J., the Applicant has sole final decision-making responsibility for the subject children.

36Within his Affidavit the Respondent raises historical concern’s relating to the children’s school attendance. He attaches excerpts of an Affidavit filed by the Office of the Children’s Lawyer at trial. These issues were considered in paragraphs 56-61 of the final decision of Engelking J. In short, Engelking J. found that although there were past issues with the children’s school attendance, the children were all described as ‘academically strong’, doing well in sciences and math, were promoted to the next grade level, and that these positive findings regarding the children’s academic capacities were a testament to the mother’s dedication to them. Justice Engelking found that there was no material change in circumstances that warranted a change to the mother’s sole decision-making authority over the children’s education.

37The requested relief on this motion is an attempt to relitigate an issue that has already been (recently) decided on a final basis. An order compelling the children’s attendance at school would constitute a change to the terms of the operative parenting order that provides the Applicant with decision-making responsibility over this subject-matter.

38The court has no jurisdiction to make such an order in the absence of a motion to change. The Respondent’s request for such relief will not succeed.

(e) Compliance with Parenting Time

39The only enforcement component of the Respondent’s request for leave is “to enforce the order of Justice Steele”. The Respondent does not particularize in his Notice of Motion the paragraphs that he alleges are in breach.

40References to alleged breaches are only found within paragraphs 1-6 of the Respondent’s supporting Affidavit, which are reproduced in full as follows:

1. On 29th March 2023, Justice Somji made a supplementary order providing a virtual access schedule for me to speak with the children. Apart from the very first appointment time, Ms. Kim has never adhered to this schedule.
2. I sometimes speak to the children regularly but sometimes not for weeks when I am simply unable to reach them. The children will often call me at random times after midnight or when I am out and unable to take or hear the call. If I knew the children were going (sic) call I would make myself available.
3. Ms. Kim has routinely failed to agree to times for parenting time with the children. She did not agree to times in 2021, 2022 and had not responded to times for 2025 (EXHIBIT 1). This includes an email I sent requesting parenting time for 2022 which Ms. Kim did not respond to and Justice Somji conveniently ignored.
4. Parenting time in 2023 was ordered by Justice Somji and for 2024 Ms. Kim did not agree for several months (sic).
5. I emailed Ms. Kim on 29th July 2024 with a comprehensive proposal for parenting time asking her to reply before the 2nd August, in time to the scheduled motion. She did not reply.
6. I emailed her again on the 9th August to allow her more time and while she did respond she did not address the proposed schedule. On the 29th August I asked her to respond to the proposed schedule again but it has been over a month and I have received no reply.

41The relevant excerpts of the Final Order of Steele J. dated October 1, 2021, are as follows:

3(1). The Respondent father, Adan McIntosh, shall have up to eight weeks of parenting time with the children, per year, in the Province of Ontario, Canada, to be exercised in periods of up to four (4) weeks at a time, as follows:

(a) Any weeks sought for the period between January-April must be agreed by no later than November 1st the year prior;

(b) Any weeks sought for the period between May-August must be agreed by no later than March 1;

(c) Any weeks sought for the period September-December must be agreed by no later than July 1st that year…

3(2). When not exercising physical parenting time in the Province of Ontario, the father shall have video or telephone access with the children three times per week for up to two (2) hours.

42On September 11, 2023, Somji J. released written reasons on a contempt motion brought by the Respondent relating to alleged breaches of parenting time and virtual parenting time in 2022 and 2023. Justice Somji dismissed the motion for contempt but added supplementary provisions to the Final Order to organize and effect the Respondent’s prescribed virtual parenting time. Specifically:

1. The Respondent father, Adan McIntosh, will have virtual parenting time with the children weekly on Tuesdays and Thursdays from 8pm to 9pm and on Saturdays from 9am to 11am (Ontario time).
2. The Applicant mother, Anita Kim, shall have all four children available for the Respondent father’s virtual parenting time during these hours.
3. The Applicant mother will initiate the parenting time call on Skype or alternatively, another free mobile service which has been agreed to by the parties at least 24 hours in advance of the call. Should the mother request to use a mobile service other than Skype, the mother shall provide the father with the name of the mobile service and any account information required so that he can download the service onto his device in a timely manner.
4. The virtual parenting time shall take place on the Applicant mother’s phone or on the children’s computer devices. The mother shall initiate the call or assist the children with initiating the call on their computers.
5. The virtual parenting time schedule can only be amended upon both parties consenting in writing or upon further order of the court.
6. These conditions are in addition to and supplement clause 2 of Justice Steele’s Final Order dated October 1, 2021.

43In the July 12, 2024 Final Order of Engelking J., the court reiterated that the supplementary terms continue to be operative. This court is unconcerned with alleged breaches that predate the Final Order. These issues were previously litigated, or ought to have been raised in the motion to change proceeding. The court cannot go behind this order.

44I have carefully reviewed the communications between the parties, attached as Exhibit 1 to the Respondent’s Affidavit:

1. With respect to in-person parenting time, at the time that the Respondent filed his motion materials, the Applicant was not in breach of the terms of the Final Order of Steele J. It is clear from the email communications attached to the father’s materials that the time period(s) by which parenting time for 2025 needed to be agreed-upon had not expired. The father’s motion was premature. However, if, as of the date of this decision’s release, the parties have not yet agreed to the Respondent’s parenting time (or at least the portion thereof that relates to requests for in-person time from January to April 2025), assistance with enforcement may be necessary.
2. With respect to virtual parenting time, the only evidence before the court regarding virtual parenting time is the Respondent’s evidence that it is not occurring at the prescribed times.

45The assessment of merits does not require the Respondent to prove that he is likely to succeed on this motion. Rather, at this preliminary screening stage, it appears that there may be some substance and potential merit to the Respondent’s request for enforcement of the operative parenting terms.

3. Balancing of Interests

46Leave motion requirements are not intended to be punitive. Rather, they are designed to act as safeguards against abuses of process where a real likelihood of such conduct is identified through the past conduct of a litigant. The leave requirement in this case is well-founded. There is an evident history of the Respondent abusing the court process through efforts to relitigate past issues and initiating unmeritorious and unnecessary steps. In such circumstances the court must attempt to balance the Respondent’s right to have meritorious legal claims heard, as against the Applicant’s right to be protected from misuses of the court’s process, and the public’s right to allocate court resources in a manner that does not bring the administration of justice into disrepute.

47The court has a duty to promote the primary objective of the FLR, to deal with cases justly: see r. 2(4). This balancing of interests includes the following:

1. Ensuring that the procedure is fair to all parties;
2. Saving expense and time;
3. Dealing with the case in ways that are appropriate to its importance and complexity; and
4. Giving appropriate court resources to the case while taking account of the need to give resources to other cases: see r. 2(3).

48As discussed above, the only relief sought by the Respondent, with any chance of success, is his request to compel compliance with the operative parenting provisions of the existing court orders. Courts have an interest in ensuring compliance with their orders. A legal system that is fair and just should not deprive a party of the right to pursue enforcement of legal rights that exist under a court order.

49The Applicant is both emotionally and financially exhausted as a consequence of the constant state of this family court litigation. It is not disputed that the Respondent is in significant arrears of child support under the operative order and has not complied with large costs awards owing to the Applicant. In these circumstances she can no longer afford to retain counsel to assist her. The court must consider the implications of expense and time that will be occasioned by a further motion.

50The public has an interest in ensuring that court resources are allocated in a manner that reflects the importance and complexity of cases, and the need to give resources to other cases. There is a general expectation that people should make effort to resolve legal disputes outside of the court process before commencing litigation. Before permitting yet another round of litigation, this court should satisfy itself that something more than ‘take it or leave it’ emails have been exchanged regarding parenting time proposals. This case has clearly usurped a disproportionate share of court resources. Directing the parties to attempt alternatives to the court process, as permitted under r. 2(5)(b), is clearly warranted and necessary to not bring the administration of justice into disrepute.

Conclusion

51It is appropriate that leave be granted only in relation to enforcement of court-ordered parenting time. However, before any such motion may proceed, the parties must first engage in bona fide efforts to mediate their 2025 parenting schedule, through open mediation, as arranged through court-connected family mediation (see the attached Resource Guide).

52Moving forward, the Respondent should be alert to the following:

1. It is true that the Respondent has never been declared a vexatious litigant. To this point, the Applicant has never brought a motion (on proper notice) for this relief. However, on October 15, 2024, r. 2.2 of the Rules was amended to permit a vexatious litigant order, on notice, on a judge’s own initiative: see the Rules, r. 2.2.02(b). The Respondent should expect that any further motions brought in this case that are not bona fide efforts to simply compel compliance with existing terms of an operative order of the court will likely result in such a hearing.
2. If the Applicant brings further hypothetical recusal motions, motions to ‘set aside’ past endorsements of the court, or motions that attempt to address past grievances with the Applicant’s conduct, court processes or other moot issues, the Respondent should anticipate that such motions for leave will be dismissed without reasons.

53As success was divided on this leave motion, there is no basis for an order for costs.

54On the basis of the above, there shall be an Order to go on the following terms:

1. The parties shall forthwith engage in bona fide efforts to resolve the 2025 parenting schedule through court-connected family (open) mediation.
2. If the parties are unsuccessful in mediation: a. Leave is granted for the Respondent father to bring a motion for enforcement of in-person and virtual parenting time only, as prescribed by paragraphs 3(1) and 3(2) of the Final Order of Steele J., dated October 1, 2021, and supplemented by the Order of Somji J. dated September 11, 2023. b. The Respondent father’s motion shall be brought only after mediation efforts have been exhausted, on a minimum of 14 days’ notice to the Applicant mother, and limited to the page restrictions prescribed for short motions as per the Consolidated Provincial Practice Direction for Family Proceedings at the Superior Court of Justice. A complete copy of the open mediation report shall be attached as an Exhibit to the Respondent’s supporting Affidavit. c. The Applicant mother shall file responding materials in accordance with the timelines prescribed by the FLR.
3. All other requests for leave are dismissed.
4. Each party shall bear their own costs as they relate to this motion for leave.

Bale J.

Footnotes

1. 1Kim v. McIntosh, 2023 ONCA 356 (“McIntosh (ONCA)”).
2. 2There are at least 16 reported decisions relating to this file.