Court File and Parties

COURT FILE NO.: FC-12-540-1 DATE: 2024/01/23 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Bernard Rene Jean Sparr, Applicant – and – Denise Downing, Respondent

Counsel: Self-represented for the Applicant Ian Vallance and Tania Pompilio for the Respondent

HEARD: October 26, 2023, and December 13, 2023

Endorsement

Shelston J.

[1] There are two motions before the court. The applicant has filed a motion for leave to commence a motion to set aside the final order of Justice Doyle dated July 7, 2021, and an order that he shall have visits with his child in the presence of a psychologist on the basis that the respondent has alienated the child from the applicant.

[2] The respondent opposes the applicant’s claim and seeks an order that the applicant pay his outstanding cost awards totaling $82,570.90, that he be declared a vexatious litigant, and in the event that he is granted leave to proceed with motion to set aside Justice Doyle’s order, and order that the applicant posts security for costs in the amount of $25,000. On this issue of parenting time, the respondent’s position is that she denies the allegations and indicates that the child is now 18 years of age and beyond the jurisdiction of this court.

[3] This litigation between the parties was commenced in May 2012 resulting in numerous temporary orders, a final order striking the applicant’s pleadings, which was upheld by the Court of Appeal, a final order at an uncontested trial, an order denying the applicant leave to appeal the final order of Justice Doyle, and litigation in France and enforcement proceedings in Ontario, Québec and France.

Background

[4] The parties married on August 8, 1998, and separated on January 25, 2010. There is one child of the marriage namely, Jenna Downing-Sparr, born April 7, 2005.

[5] Since separation, the respondent retained primary parenting of the child and has been endeavouring throughout this litigation to obtain the necessary financial disclosure from the applicant in support of her claim for child and spousal support. The applicant denies these allegations and indicates that he provided the necessary disclosure.

[6] The application was commenced in May 2012 and by Minutes of Settlement dated November 13, 2013, all issues were settled except child support, Section 7 expenses and spousal support.

[7] On October 25, 2013, Master Roger, as he then was, conducted a case conference where he made various orders including disclosure by both parties.

[8] On August 22, 2014, the parties appeared before Justice Linhares de Sousa because the applicant had not provided the disclosure ordered at the case conference. The court ordered the applicant to provide further disclosure.

[9] The applicant failed to provide the disclosure ordered on August 22, 2014. The respondent brought a motion on March 11, 2015, to strike the applicant’s pleadings for failure to comply with orders for disclosure. Justice Labrosse adjourned the motion based on the parties reaching an agreement as to the remaining disclosure ordered on August 22, 2014, and granted other relief and indicated that this was the last chance for the applicant to produce the documents failing which the respondent could resubmit her motion. On August 18, 2015, Justice Labrosse ordered the applicant to pay costs on a substantial indemnity basis to the respondent in the amount of $8795.29.

[10] On February 28, 2018, Justice Shelston, at a settlement conference, noted that the applicant’s disclosure and income remained a contested issue, that the applicant had not provided the court ordered disclosure, the applicant had not paid the costs order of Justice Labrosse, that the applicant’s request for summer access could not proceed until he paid outstanding costs orders and that the respondent could proceed with the motion to strike the applicant’s pleadings for failure to comply with disclosure orders. Costs of $5,000 was ordered in the cause.

[11] The respondent brought a motion to strike the applicant’s pleadings on July 10, 2018. Justice O’Bonsawin ordered the applicant to provide financial disclosure, to pay the costs of $8,795.29 to the respondent, to pay arrears of child support of $5,013.25 to the respondent, to pay arrears of Section 7 expenses in the amount of $7,811.09 to the respondent and ordered the applicant to pay costs to the respondent in the amount of $5,000 by August 10, 2018 failing which the applicant’s pleadings would be struck automatically.

[12] The applicant did not provide the ordered disclosure by August 10, 2018. On November 15, 2018, the matter returned before Justice O’Bonsawin. She found that the applicant had not complied with her previous disclosure order, ordered him to provide the disclosure by December 13, 2018, ordered the applicant to pay to the respondent costs of $15,000 and that no further extensions would be granted. In addition, the court made a preservation order (“Freezing Order”) that the applicant shall preserve and not deplete, dissipate, encumber, sell, or otherwise dispose of his home in Gatineau, Quebec and the investments or accounts set out in the order affecting thirteen financial institutions located in Canada, France and Switzerland.

[13] Again, the applicant did not provide the court ordered disclosure. The parties returned before Justice O’Bonsawin on April 3, 2019. By endorsement dated May 24, 2019, she found that the applicant had not paid the cost awards of $15,000 ordered on December 13, 2018, that the applicant had been in breach of six previous court orders with respect to disclosure and that, consequently, she ordered that the applicant’s pleadings be struck.

[14] On June 20, 2019, Justice O’Bonsawin ordered the applicant to pay to the respondent costs fixed the amount of $24,743.17 finding that the applicant had acted in bad faith.

[15] The applicant appealed the orders of Justice O’Bonsawin dated May 24, 2019 and June 20, 2019. On January 19, 2021, the Court of Appeal dismissed the applicant’s appeal and ordered the applicant to pay to the respondent costs of $20,000. The court found that the applicant had breached six court orders, that the applicant received multiple warnings that is pleadings would be struck if he did not comply, and that the disclosure made by the applicant was not sufficient as the submissions were rejected by the motion judge who found that the disclosure was “clearly lacking".

[16] The respondent moved to an uncontested trial. On July 7, 2021, Justice Doyle, who conducted the uncontested trial, ordered as follows:

a) The applicant to forthwith pay to the respondent retroactive Guideline child support for the child in the amount of $248,328 for arrears accumulated up to March 31, 2021, based on an imputed income of $300,000 per year.

b) Commencing April 1, 2021, and continuing on the first day of each month, the applicant to pay to the respondent ongoing Guideline child support for the child in the amount of $2379 per month based on an imputed income of $300,000.

c) The applicant shall forthwith pay to the respondent Section 7 expenses for the child in the amount of $5536.66.

d) The applicant shall forthwith pay retroactive spousal support on a compensatory and needs-basis in the lump sum after tax amount of $500,000 as of March 31, 2021.

e) The applicant shall pay ongoing spousal support of $7200 commencing April 1, 2021, and continuing on the 1st of each month with the last payment being January 1, 2024.

f) The court ordered a vesting order so that the funds from bank accounts and investments frozen by Justice O’Bonsawin Freezing Order dated November 15th, 2018, shall be forthwith transferred to the respondent pursuant to sections 9 and 34 of the Family Law Act and that the respondent may satisfy any payments owed by this order from all frozen accounts set out in the order.

g) The court ordered that the cost orders of Justice O’Bonsawin dated June 20th, 2019 in the amount of $24,743.17, the cost order of the Court of Appeal dated January 19th, 2021 in the amount of $20,000, the cost award of Justice Shelston dated February 28th, 2018 in the amount of $5000 and the cost for the uncontested trial in the amount of $21,827.73 shall be enforced by the Family Responsibility Office as the costs were incurred for the determination of support.

[17] Justice Doyle ordered the applicant to pay to the respondent $825,535.56 and to satisfy the payment, she ordered a vesting order so that the funds from the applicant’s investment in bank accounts, which had previously been subject to Justice O’Bonsawin Freezing Order, would be transferred to the respondent.

[18] When the applicant became aware of the final order of Justice Doyle, he filed an urgent motion, for a stay of the final order. In response, the respondent brought a motion requiring the applicant to pay $71,570.90 in outstanding cost awards, that the applicant pay $25,000 for security for costs, and the applicant be declared a vexatious litigant. In his endorsement dated September 16, 2021, Associate Justice Kaufman wrote that counsel for the applicant advised that there was no appeal made of Justice Doyle’s order and that no errors were being alleged. Rather, the applicant sought clarification of paragraph 7 of the order as it was apparently vague and required clarification as it was possible for the respondent to over claim funds from the financial institutions listed in Justice Doyle’s order. Associate Justice Kaufman dismissed both motions as not being urgent. However, Associate Justice Kaufman, in his endorsement, advised he had contacted Justice Doyle who was prepared to hear the parties on the clarification issue. Associate Justice Kaufman ordered that until that happened, the applicant could not bring any other motions without leave of the court. The applicant was ordered to pay $1500 to the respondent as costs for the motion.

[19] While the family law proceedings were ongoing, on October 27th, 2020, the applicant commenced the civil action against the respondent where he sought various relief including an order to unfreeze all of his accounts and investments subject to the Freezing Order and to lift a preservation order on his home in Gatineau. In the application, the applicant alleged that the decision to freeze his bank accounts and investments was unjustified, abusive, and discriminatory. The respondent brought a motion to stay the applicant’s civil claim. On December 9, 2021, Justice Gomery found that the action was a duplication of the ongoing family law proceedings, was a collateral attack on Freezing Order of Justice O’Bonsawin, that the applicant had not been deprived of a right to be heard, that he had been given numerous chances to provide the disclosure, and that he was warned of the consequences of his failure to provide said disclosure. The court found that permitting the civil action to continue would be an injustice to the respondent as it would oblige her to re-litigate issues already decided in her favour by Justice Doyle. Justice Gomery granted the respondent’s request and stayed the applicant’s civil action and ordered him to pay to the respondent $4500 in costs.

[20] After the applicant’s civil proceeding was stayed on December 9, 2021, on January 13, 2022, the applicant filed a form 14B motion seeking leave to commence a motion to change the final order. The respondent opposed the use of a form 14B for a motion to change. Consequently, the applicant did not pursue the preceding through that basket motion procedure.

[21] In June 2022, the applicant commenced proceedings in the Québec Superior Court seeking to suspend the enforcement of the terms of Justice Doyle’s order by the Québec enforcement authorities. The respondent challenged the Superior Court’s jurisdiction and subsequently, on June 29, 2022, the applicant filed a notice of withdrawal but only after the respondent has spent significant legal fees with Québec counsel.

[22] The applicant brought a motion for leave to appeal Justice Doyle's order. On July 15, 2022, Justice Pardu of the Court of Appeal found that the applicant counsel told Associate Justice Kaufman on the September 16, 2021, that he had no intention to appeal and did not allege any error committed by the judge. Further, Justice Pardu found that the grounds for appeal were weak concerning the applicant’s allegation that the judge erred in imputing an income to him, that there was no evidence that the applicant was actually paying the child support, that he had not paid any of the cost awarded and that the evidence demonstrated the had the financial ability to pay substantial arrears order but that he had categorically refused. The court found that the applicant was not in good faith and that the respondent continues to suffer a prejudice with the passage of time without payment. The appeal was denied, and costs were awarded of $5000 to the respondent.

[23] On November 3, 2022, the applicant commenced divorce proceeding in France.

[24] On January 13, 2023, the applicant filed a form 14B motion seeking leave to bring a motion to change the final order, based on a material change in circumstances since that date. On January 20, 2023, the respondent filed a 14B motion seeking to dismiss the applicant’s motion for leave to bring a motion to change. Subsequently, the applicant withdrew his form 14B motion.

[25] In January 2023, the applicant sought to schedule a meeting with Justice Doyle to seek clarification on the vesting order as set out in Associate Justice Kaufman’s September 16, 2021, order. The meeting was held on March 16, 2023. By her endorsement dated March 16, 2023, Justice Doyle indicated that the applicant filed motion material requesting leave to bring a motion to change the final order, that he did not earn $300,000 per year and that he did not have the assets as alleged by the respondent. Justice Doyle endorsed that she would not be revisiting or revising the final order and that it was up to the applicant to seek leave to set aside the order or proceed with a motion to change.

[26] On April 6, 2023, the applicant filed a form 14B motion seeking leave to bring a motion to set aside the orders of Justice Doyle dated July 7, 2021, and Associate Justice Kaufman dated September 16, 2021. The applicant alleged that, at the uncontested trial, the respondent lied to the court, and that the decision was based on fraud and errors regarding his income, debts and alleging that it was a jurisdictional error based on a marriage contract signed in France. Further, the applicant alleged that crucial information was hidden from the court and that many parts of the decision merit clarification and correction.

[27] On April 25, 2023, the applicant brought a notice of motion seeking to set aside the final order of Justice Doyle dated July 7, 2021, and seeking the reinstitution of his pleadings and to seek permission to participate in the procedures before the court. The applicant sought various relief including a revision of the order, spousal support recognition of the marriage contract signed in 1998 in France, releasing all seizures of his bank accounts and investments in Canada and his house in Gatineau and to reinstitute is right as a parent regarding the agreement on joint custody signed in 2013. In addition, the applicant sought an order setting aside the order of Associate Justice Kaufman dated September 16, 2021.

[28] On July 15, 2023, the respondent filed her own notice of motion seeking the dismissal of the applicant’s motion to set aside and /or change the final order of Justice Doyle dated July 7, 2021, an order that the applicant be declared a vexatious litigant and that he shall not be permitted to take any further steps in any court in Ontario without leave of this court and only after having satisfied his outstanding support arrears, his outstanding costs, and has paid security for costs in this matter. In the alternative, the respondent sought an order that the applicant cannot schedule any motion, if leave is granted by the court, until he has paid the outstanding cost awards of $82,570.90 and paid $25,000 as security for costs.

[29] The motions eventually proceeded on October 26, 2023. The next day, on October 27, 2023, the respondent was served with an application commenced by the applicant and his corporation on October 20, 2023, for damages in the amount of at least $3,000,000, additional unspecified damages and punitive damages in the amount of $1,000,000. At the request of counsel for the respondent, I reconvened the motion on December 13th, 2023 to receive this new evidence and consider its implication in this proceeding.

Should the applicant’s motion for leave to bring a motion to set aside the final order be granted or dismissed?

[30] The applicant seeks leave to bring a motion to set aside the final order. As a result, Rule 25(19) of the Family Law Rules provides that the court may, on motion, change an order that:

a) was obtained by fraud;

b) contains a mistake;

c) needs to be changed to deal with the matter that was before the court by that it did not decide;

d) was made without notice; or,

e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[31] In Van Aman v Mugo, 2022 ONSC 299, the court found that to be successful on such a motion, the court must take a good hard look at the merits to determine whether the moving party has established an arguable case and the court should consider whether the outcome a trial could well have been materially different if the moving party’s evidence had been heard and found credible.

[32] In Berta v Berta, 2021 ONSC 2823, Justice Bale set out the factors for the court to consider at paragraphs 19-22:

[19] Mountain View Farms Ltd. v McQueen, 2014 ONCA 194, 119 O.R. 3(d) 561, at paras. 48-49, sets out the following factors for the court to consider when determining whether to set aside an order obtained in circumstance of default:

a) Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment.

b) Whether the moving party has established that there exists a plausible excuse or explanation for the default.

c) Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits.

d) The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed.

e) The effect of any order the motion judge may make on the overall integrity of the administration of justice.

[20] In Mountain View Farms, the Ontario Court of Appeal explained at para. 50 that “these are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default”.

[21] In assessing whether there is an arguable case on the merits, the motion judge must take a “good hard look at the merits” and analyze whether the moving party has established an arguable case. It is not an error to assess credibility at this stage; more is required than self-serving statements devoid of detailed evidence supporting key assertions: “a self-serving affidavit does not create a triable issue in the absence of detailed facts and supporting evidence”: HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894 at para 28.

[22] While there is broad discretion and flexibility under the Family Law Rules, and under r. 25(19) in particular, at least one of the five preconditions outlined in Mountain View Farms must be engaged before the broad judicial discretion under r. 25(19) of the Family Law Rules can be invoked: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 70.

[33] In Kinsmen v Walker, 2022 ONCJ 588, the court identified that the particular circumstances of each case must be viewed to determine whether it is just to relieve the defaulting party from the consequences of his or her default and that at least one of the 5 preconditions outlined in Mountain View Farms must be engaged before the broad discretion under rule 25(19) of the Family Law Rules can be invoked.

[34] In Hilton v Hilton, 2021 ONCA 29, the court held that where a party brought a 14B motion seeking to set aside all orders made at an uncontested trial as well as other relief, the court held at paragraph 10:

[10] By failing to comply with the Family Law Rules and the orders of Fryer J., the appellant is the author of much of his misfortune. When a party does not participate in the process, things tend to not go well. Nevertheless, the appellant’s allegations of the respondent’s misrepresentations and material omissions must still be determined on the merits.

Analysis

[35] Once the applicant became aware of the final order of Justice Doyle, he brought an urgent motion to stay enforcement. After Associate Justice Kaufman dismissed his motion on September 16, 2021, as not being urgent, the applicant embarked on a series of legal procedures to frustrate the enforcement of the final order. From September 16, 2021 to April 6, 2023, the applicant brought numerous legal proceedings to address the final order. Despite claiming a motion to set aside as a claim for relief at the urgent motion before Associate Justice Kaufman on September 16, 2021, the applicant never pursued that relief. Rather, he continued on with his civil litigation against the respondent which was ultimately stayed by Justice Gomery on December 9, 2021. He then commenced the motion to change in January 2022 which she withdrew within a month. In June 2022, he sought to frustrate enforcement of Justice Doyle’s order in the Superior Court of Québec which he ultimately withdrew. He brought a motion for leave to appeal Justice Doyle’s order which was dismissed by the Court of Appeal on July 18, 2022. In January 2023, he brought a motion to change the final order by way of a form 14B basket motion which was opposed. Finally, in January 2023, he sought an appointment with Justice Doyle for clarification on her final order which took place on March 16, 2023. It was only on April 6, 2023 that he filed a form 14B motion to set aside the final order. Finally, in October 2023, he brought another civil proceeding against the respondent related to actions taken in the family law proceedings.

[36] In the applicant’s affidavit dated April 6, 2023, he submits that without any prior notice, an uncontested trial proceeded on July 7, 2021, resulting in a disproportionate judgement and that important information was not mentioned to the court alleging that the applicant committed perjury, provided false information, presented fictitious scenario to arrive at an unjust decision.

[37] I find that the applicant, once his pleadings were struck, was not entitled to notice of the uncontested trial on child and spousal support. The reason that the applicant did not participate in the trial on the remaining issues was based on the Court of Appeal decision dismissing his appeal of the order striking his pleadings. The applicant had numerous opportunities to comply but failed to do so at every opportunity.

[38] The applicant did not provide many pieces of disclosure requested throughout the litigation in this motion. The applicant is the party who failed to provide the disclosure.

[39] The applicant alleges that there was an error in jurisdiction because that pursuant a marriage contract signed in July 1998 in France, the respondent was entitled to a lump sum payment. He argues that this prevented the respondent from being entitled to any spousal support. Pursuant to the terms of the marriage contract signed in 1998, the applicant was obligated to pay to the respondent Fr.400,000. However, the respondent stated in her affidavit of the existence of the marriage contract and the judge considered not only the applicant’s obligation to pay to the respondent Fr.400,000 based on the French marriage contract, but also considered the applicant’s obligation to pay to the respondent $100,000 based on the partial separation agreement. In both instances, the respondent never made the payments. The respondent provided evidence regarding her giving up her career in fashion and television industry to move to France where she was discouraged from working and assumed domestic and childcare responsibilities. The applicant indicated she was to be paid Fr.400,000 or the Canadian equivalent of $100,000 but never received any such payment.

[40] I find that the marriage contract itself was not provided to the trial judge other than to say that the applicant owed the respondent a lump sum amount pursuant to the marriage contract. However, by letter dated December 6, 2016, the notary who prepared the marriage contract, indicated that the Fr.400,00 was included as a special clause in the marriage contract in recognition of the respondent renouncing from the statutory regime in France of community of acquests and accepting a regime of separate as the property. The provision in the marriage contract had nothing to do about a waiver of spousal support. I find that this submission is without merit.

[41] On the issue of property division, the respondent disclosed that she was awarded €85,000 from the sale of a joint piece of property with the applicant owing her €148,000. The applicant appealed the trial decision, but his appeal was dismissed on December 1, 2020. The applicant appealed to the Cour de Cassation and his appeal was denied on March 15, 2023. The applicant has never paid any of the sums owed to the respondent.

[42] The applicant alleges that Justice Doyle erred in imputing an income to him of $300,000 a year. He denies many of the respondent’s allegations as to his salary, his rental income and the sale proceeds of land in France. Further, the applicant denies the list of assets alleged by the respondent including a property in France, chalet in Switzerland, bank accounts and investments in Switzerland and the United States, based on her not providing any documentary evidence. However, the applicant failed to provide the necessary financial disclosure including, but not limited, to bank statements and investments statements.

[43] Upon a review of the oral reasons given by Justice Doyle, she drew an adverse inference against the applicant for failing to provide the financial disclosure required including bank statements, investment statements, and the like. Justice Doyle reviewed the law on imputation of income and concluded that she had sufficient evidentiary grounds to impute an income to the applicant in the amount of $300,000. Now, the applicant is complaining about being imputed an income based on his failure to provide financial disclosure. I do not find that the applicant has provided any evidence that would change the imputation of income. As the Court of Appeal held in Hilton, when parties fail to provide financial disclosure, things will not go well for the defaulting party. This is the situation in this case.

[44] I have reviewed the respondent’s affidavit for the uncontested trial and exhibits totaling 234 pages including an expert’s report regarding the applicant’s income and supporting exhibits. In her endorsement dated July 18, 2022, Justice Pardu of the Court of Appeal, in dismissing the applicant’s motion for leave to appeal the final order, held that there was significant evidence before the court to allow the trial judge to impute an income of $300,000 to the applicant. I agree.

[45] In this motion, the applicant has not filed any bank statements or investment statements and continues to be in breach of the various orders for disclosure. Many of the documents filed by the applicant are dated after the date of the uncontested trial. These documents were not provided to the trial court as a result of the failure of the applicant to comply with disclosure orders.

[46] I find that the applicant is at fault if he did not provide the necessary documentation to show that he paid various income tax in France, Québec and Canada thereby reducing his disposable income. The applicant failed to provide any such evidence during the ongoing litigation and must be responsible for his own default.

[47] Despite the Court of Appeal finding on two separate occasions that the applicant did not pay the cost awards, the applicant has prepared a two-page summary, without any supporting documentation, seeking to deduct from the final award, $145,225.07 for alleged payments for child support and costs. The applicant alleges that he paid for extra school expenses, $15,000 for the April 2019 order, Visa payments payable to Mr. Vallance, and various cheques totaling $35,762.35. Further, the applicant indicates that his Bank National account was emptied on May 16, 2022, as part of the enforcement proceedings, claiming child support since 2010 in the amount of $67,020.72, $18,900 recovered by enforcement proceedings by revenue Québec between July 2022 in March 2023 plus legal fees of $59,296.35.

[48] Here again, the applicant is seeking to have payments made prior to the final order to be considered in enforcement proceedings. Further, the applicant is now alleging that he has paid some of the cost awards. I find that the applicant’s evidence is simply not credible on the issue of the cost awards. On the issue of the payment of child support, there is no evidence to support his allegations. I acknowledge that enforcement proceedings have recovered monies from various accounts owned by the applicant.

[49] The applicant alleges that he paid legal fees between 2018 and 2022, that the respondent failed to provide her financial statements between 2014 and 2020, that the respondent refused to list the matter for trial on two separate occasions and then he made numerous offers to settle as well as five offers to mediate without resolution. This information is irrelevant to the issues before the court. The issue of the respondent failing to provide financial disclosure was not raised in any endorsement of the court and is therefore without merit.

[50] I do not find that the respondent misled the court or omitted to provide relevant information. As a result of the failure of the applicant to provide the requested disclosure, which he continues to do in this motion, the respondent provided the court with the best evidence available including an expert’s report. I do not find any of the grounds under rule 25(19) exist in this case.

[51] The applicant’s failure to comply with numerous orders for disclosure have prevented her from fully ascertaining the applicant’s income and assets. The applicant submits that he has suffered enormous prejudice as a result of the freezing order since December 2018. Justice O’Bonsawin made such an order based on the continued default by the applicant of respecting financial disclosure and cost awards. Justice Gomery dismissed the applicant’s civil proceeding as a collateral attack on the freezing order. Both parties acknowledge that the respondent has been able to recoup some funds in Ontario in the amount of approximately $35,000 plus the respondent has been able to effect the seizure on some of the applicant’s assets in Québec and in France. Any prejudice sustained by the applicant are all self induced.

[52] The actions of the applicant, both prior to and subsequent to the final order, are scandalous in that the applicant simply ignores court orders. This applicant has breached the terms of a partial separation agreement, numerous orders for disclosure, unilaterally varied in the amount of child support, failed to pay the $100,000 to the respondent and commenced proceedings in France, Ontario and Québec all designed to challenge the respondent’s entitlement to child support and spousal support. Court orders are not suggestions and must be followed. Litigants who ignore court orders do so at their own risk. This litigant has ignored numerous court orders issued by the Superior Court of Justice and the Court of Appeal. Allowing this applicant to bring the motion to set aside the trial decision of July 7, 2021, based on his conduct before and subsequent to the final order would, in my view, bring the administration of justice into disrepute. The applicant is responsible for his conduct and must bear the consequences.

[53] I conclude by denying the applicant leave to bring a motion to set aside the order of Justice Doyle dated July 7, 2021.

Should the applicant be declared a vexatious litigant such that he shall require leave of the court to institute further proceedings and/or continue current proceeding

[54] Section 140 of the Courts of Justice Act, RSO 1990, c C.43 states that 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,

c) no further court 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.

[55] In Austin v House, 2022 ONSC 2349, the court provided an excellent list of the factors to consider in determining if a litigant is vexatious as follows:

a) 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 10 to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyer who have acted for or against a 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 say whether there was originally a good cause of action.

f) the failure of a person instituting the proceedings to pay the cost of unsuccessful proceedings is one factor to be considered.

g) the respondent’s conduct is persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

h) vexatious conduct may be based upon commencing vexatious proceedings or by litigating legal proceedings vexatiously.

[56] In this case, I find that the applicant meets the test to be declared a vexatious litigant based on the following:

a) The applicant is showed a complete disregard for compliance for numerous orders for disclosure.

b) The applicant has failed to pay any cost awards made in this litigation including two awards from the Court of Appeal.

c) The applicant commenced a civil proceeding against the respondent in 2020 which was stated by Justice Gomery on December 9, 2021, as a collateral attack on the freezing order of Justice O’Bonsawin.

d) The applicant commenced a motion to change by form 14B in January 2022 and withdrew it within the month.

e) The applicant commenced legal proceedings in the Superior Court of the province of Québec to prevent enforcement of the final order which he withdrew by the end of June 2022 causing the respondent to incur substantial legal fees.

f) The applicant sought leave to appeal Justice Doyle’s order dated July 7, 2021, which was rejected by the Court of Appeal on July 19, 2022.

g) The applicant commenced the motion to change by form 14B in January 2023 and withdrew it within a month.

h) The applicant commenced a civil proceeding against the respondent on October 23, 2023, that he did not disclose to the court when this motion was heard on October 26, 2023. The documents were served on the respondent on October 27, 2023, giving rise to the continuation of the motion on December 13, 2023.

[57] As such, I find that the applicant is a vexatious litigant, I find that the applicant must first pay all outstanding cost awards and then he must obtain leave of the Superior Court of Justice before commencing any further proceeding.

Security for costs

[58] The respondent seeks an order for security for costs in the event that the applicant is granted leave to proceed. As I have denied the applicant leave to proceed, this issue is moot. However, if I am wrong, rule 24(13) of the Family Law Rules provides that a judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

a) a party habitually resides outside Ontario.

b) A party has an order against the other party for costs that remain unpaid, in the same case or another case.

c) If a party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

d) There is good reason to believe that the case is a waste of time or a nuisance that the party does not have enough assets in Ontario to pay costs.

e) A statute entitles the party to security for costs.

[59] I agree with the respondent that, in this case, the applicant resides outside of Ontario, that the outstanding cost awards total $82,570.90 remains unpaid and the applicant has no assets in Ontario.

[60] Based on the applicant’s conduct of ignoring costs orders, I find it is fair and appropriate that the applicant pay security for costs in the amount of $25,000.

Applicant’s request to have visits with his child in the presence of a psychologist

[61] The applicant submits that the respondent has embarked on a course of parenting alienation. The respondent denies the allegation and the child is now 18 years of age living with her mother. The issue of parenting time was not before the trial court on July 6, 2021, and is therefore irrelevant for this motion to set aside the trial decision.

[62] In any event, the child is over the age of 18 and is beyond the jurisdiction of this court. This claim is denied.

Costs

[63] I find that the respondent has been the successful party on this motion and is presumptively entitled to costs. I order that the respondent provide her cost submissions not to exceed three pages, double spaced, and in twelve-point font plus a detailed bill of costs and any offers to settlement by February 5, 2024. I order the applicant to provide his costs submissions not to exceed three pages, double spaced, and in twelve-point font plus a detailed bill of costs and any offers to settle by February 19, 2024. I order that the respondent provide reply cost submissions not to exceed two pages, double spaced, and in twelve-point font by February 26, 2024.

Justice M. Shelston

Released: January 23, 2024