Cortese v. Polito, 2026 ONSC 695

CITATION: Cortese v. Polito, 2026 ONSC 695

NEWMARKET COURT FILE NO.: FC-19-57769-00

DATE: Feb. 4, 2026

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Rachael Giovanna Cortese, Applicant

AND:

Michael Rocco Polito, Respondent

BEFORE: The Honourable Mr. Justice G.A. MacPherson

COUNSEL: S. Sankaran, Agent for the Applicant

C.A. Murphy, Counsel for the Respondent

HEARD: February 4, 2026

ruling on motion

Relief Requested

1The Respondent filed a motion seeking the following Orders:

(a) that the Applicant has persistently and without reasonable grounds instituted and conducted vexatious court proceedings in a vexatious manner and is a vexatious litigant pursuant to Rule 140 of the Courts of Justice Act,

(b) that the Applicant be prohibited, either directly or indirectly, from instituting any proceedings or continuing any proceedings previously instituted in any court in Ontario, except and until she has leave to do so from a Judge of the Superior Court of Justice,

(c) that all existing actions, appeals, and applications brought by the Applicant in the Province of Ontario be stayed until leave has been obtained,

(d) that should the Applicant seek to commence or continue a proceeding or any appeal in any court in Ontario without first filing an Order permitting her to do so, the proceeding shall be immediately stayed upon any person filing a copy of this Order with the court,

(e) that the Respondent shall deliver a copy of this Order to any person or body with whom the Applicant has initiated or continued any complaint, including any court, administrative body, tribunal, and/or regulatory body,

(f) dispensing with the Applicant’s approval of this Order as to form and content, and

(g) costs.

Brief Background

2The parties were married September 17, 2016.

3The marriage was short. The parties separated January 18, 2017.

4There are no children of the marriage.

5The parties executed a separation that resolved the issues of spousal support and property division on April 6, 2017.

Police Charges Against the Applicant – Extortion – 2019

6In 2018 the Applicant attended the Respondent’s home without notice. She was charged with extortion and attempt to induce payment of money.

7The Respondent states that, following the criminal charges, there were bail conditions prohibiting contact. The Respondent states that the Applicant was charged with breaching those conditions in 2019.

8The Applicant’s criminal charges were resolved with a three-year Peace Bond on June 24, 2021 that included the following terms:

a) that the Applicant keep the peace and be of good behaviour;

b) that the Applicant not associate or communicate with the Respondent in any way, by any physical, electronic, or other means, or be in the presence of the Respondent except through civil and family counsel; and

c) that the Applicant not be in any place the Respondent lives, works, goes to school, or frequents.

Application to Set Aside the Separation Agreement and to Request Spousal Support and Equalization – 2019

9In 2019 the Applicant commenced an Application requesting an Order setting aside the Separation Agreement dated April 6, 2017 and requesting spousal support and equalization.

10The Application was dismissed by Order of Justice Bateman, by way of summary judgment, on August 20, 2025. The Order of Justice Bateman was not appealed. The Applicant has not commenced any further proceedings related to Divorce Act claims dismissed by Justice Bateman on August 20, 2025. It is noteworthy that the parties were divorced by Order dated February 3, 2020.

Small Claims Court – 2019

11The Applicant advanced an action in Small Claims Court requesting damages related to the filming of sexual relations by the Respondent absent the Applicant’s consent. That matter has not concluded. Pursuant to a Small Claims Court Endorsement dated June 13, 2023, the Applicant was required to serve on the Respondent the documents she was relying on. The Applicant did not do so. The matter has remained dormant since June 13, 2023.

Police Charges Against the Respondent - 2022

12The Respondent was charged “regarding the alleged videotaping of our sexual relations during the brief marriage.” The charges were withdrawn in November 2023.

13It is noteworthy that following the Order of Justice Bateman, dismissing the Applicant’s Application for spousal support and equalization, the Respondent states that the Applicant attended police stations seeking to have more criminal charges brought against him.

Law

Section 140 of the Courts of Justice Act

Vexatious litigant orders

140 (1) If a judge of the Superior Court of Justice or of the Court of Appeal is satisfied that a person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner, the judge may make an order that includes any of the following terms:

1. No further proceeding may be instituted by the person in any court, except by leave of a judge of the Superior Court of Justice.

2. No proceeding previously instituted by the person in any court shall be continued, except by leave of a judge of the Superior Court of Justice.

3. Any other term that is just. 2024, c. 2, Sched. 6, s. 7 (1).

Procedure

(2) An order under subsection (1) may be made on a judge’s own initiative or on motion or application by any person, as provided in the rules of court. 2024, c. 2, Sched. 6, s. 7 (1); 2024, c. 28, Sched. 4, s. 5.

Notice required

(2.1) An order under subsection (1) may only be made on notice to the person who is the subject of the order, as provided in the rules of court. 2024, c. 2, Sched. 6, s. 7 (1).

Branches of the Superior Court of Justice

(2.2) An order of the Superior Court of Justice under subsection (1) may be made by a judge presiding in any branch of that court. 2024, c. 2, Sched. 6, s. 7 (1).

Appeals and reviews

(2.3) The following rules apply with respect to an order made under subsection (1):

1. If the order was made by a judge of the Superior Court of Justice, an appeal of the order lies to a panel of the Court of Appeal.

2. If the order was made by a judge of the Court of Appeal, a panel of the Court of Appeal may, on motion, set aside or vary the decision.

3. For greater certainty, leave is not required to bring an appeal under paragraph 1 or a motion under paragraph 2, unless the court orders otherwise. 2024, c. 2, Sched. 6, s. 7 (1).

Application for leave to proceed

(3) Where a person against whom an order under subsection (1) has been made seeks leave to institute or continue a proceeding, the person shall do so by way of an application in the Superior Court of Justice. R.S.O. 1990, c. C.43, s. 140 (3); 1996, c. 25, s. 9 (17).

Leave to proceed

(4) Where an application for leave is made under subsection (3),

(a) leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding;

(b) the person making the application for leave may seek the rescission of the order made under subsection (1) but may not seek any other relief on the application;

(c) the court may rescind the order made under subsection (1);

(d) the Attorney General is entitled to be heard on the application; and

(e) no appeal lies from a refusal to grant relief to the applicant. R.S.O. 1990, c. C.43, s. 140 (4).

Abuse of process

(5) Nothing in this section limits the authority of a court to stay or dismiss a proceeding as an abuse of process or on any other ground. R.S.O. 1990, c. C.43, s. 140 (5).

Deputy judges

(6) For greater certainty, a reference to a judge of the Superior Court of Justice in this section does not include a reference to a deputy judge. 2024, c. 2, Sched. 6, s. 7 (2).

14Under s. 140(1) of the Courts of Justice Act, where a judge of the Superior Court or this court is satisfied that a person has “persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner”, the judge may order that the person may not, without leave, institute any further proceeding in any court or continue a proceeding previously instituted, as well as any other term that is just.

15A purpose of s. 140 is to prevent an abuse of the court’s process.¹

16The factors to consider in determining if a litigant is vexatious are set out in the leading case called Lang Michener Lash Johnston v. Fabian:²

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, and

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

17A litigant’s behaviour both in and out of court may be relevant, where out-of-court conduct is evidence from which the court could infer that the litigant’s motivations for instituting court proceedings are the product of an unreasonable obsession with a cause.³

Discussion

18The Applicant has filed numerous complaints with the police. Those complaints have resulted in one charge against the Respondent. The charge was later withdrawn. It is noteworthy that it was the police, and not the Applicant, that advanced criminal charges.

19The Applicant’s behaviour in attempting to have charges laid against the Respondent are concerning. The Applicant, if she continues this trajectory, runs the very significant risk of charges being advanced against her for criminal harassment, mischief, or some other Criminal Code violation. She is cautioned.

20However, the Applicant has advanced two actions. In respect of the Application to set aside the Separation Agreement, that matter is resolved. Justice Bateman, while dismissing the claims summarily, did not indicate that the claims were void of merit or that the claims were brought for an improper purpose. The Applicant did not appeal the Order. The Applicant has not advanced further proceedings addressing the setting aside of the separation agreement, spousal support or equalization that have already been adjudicated.

21In relation to the Small Claims matter, that action is for damages. The action is not duplicative of the claims set out in the Application to set aside the Separation Agreement. The Small Claims Court action has remained dormant for 2 ½ years. The Respondent has his remedies in Small Claims Court.

22The Respondent has not established that the Applicant has persistently and without reasonable grounds instituted vexatious proceedings or conducted a proceeding in any court in a vexatious manner. She is cautioned. The issues of spousal support and equalization are finalized. The Applicant runs the real risk, should she advance a further claim to set aside the Separation Agreement, request spousal support or request equalization, that the Respondent will advance another motion requesting an Order declaring her a vexatious litigant and he may then be successful. It is time for the Applicant to put a period at the end of this relationship and turn the page.

Costs

23The courts and the rules of court as it relates to the issue of costs are designed to foster four purposes; specifically, (1) to partially indemnify the successful litigant; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules, O. Reg. 114/99, as amended, (“the Rules”) (see Mattina v. Mattina, 2018 ONCA 867).

24By any metric the Applicant was the most successful party on the motion.

25As the successful party, subrule 24(3) of the Rules creates a presumption of costs in favour of the Applicant.

26Subrule 24(8) of the Rules provides criteria for determining the reasonableness of a party’s behaviour in a case (a factor in clause 24(12)(a) (1) above). It reads as follows:

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court may examine,

(a) the party's behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

27I find that the Applicant has not behaved reasonably.

28On August 20, 2025, Justice Bateman made an Order that the Applicant pay costs of the summary judgment motion dismissing her Application in the amount of $12,000 in 12 equal payments of $1,000 per month commencing on September 1, 2025. The Applicant has not made all of those payments. The Applicant, I am told, has now filed for bankruptcy listing the Respondent as a creditor for the outstanding costs. It is unreasonable to ignore a cost Order in favour of the Respondent and then seek costs against the Respondent.

29I have decided that each party shall bear their own costs of this motion.

ORDER

1. This is a Final Order.

2. This Order is made pursuant to the Courts of Justice Act.

3. This Ruling is deemed to be an Order of the Court that is operative and enforceable without any need for a signed or entered, formal, typed Order.

4. The Respondent’s motion for a declaration that the Applicant is a vexatious litigant is dismissed.

5. Each party shall assume their own costs.

6. The Applicant’s approval of an Order as to form and content is dispensed with.

The Honourable Justice G.A. MacPherson

Footnotes

1. 1Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 230 (Ont. C.A.), at paras. 30, 40, leave to appeal refused, [2006] S.C.C.A. No. 144
2. 21987 172 (ON SC), [1987] O.J. No. 355 (Ont. H.C.)
3. 3Bishop v. Bishop, 2011 ONCA 211, at paras. 8-9, leave to appeal refused, [2011] S.C.C.A. No. 239