Identical notices of appeal in family law proceedings are vexatious: Ontario Court of Appeal

The Ontario Court of Appeal has ruled that an appellant’s two notices of appeal, which were the same, were in line with her frivolous, vexatious, and abusive way of conducting the entire family law proceedings for the past decade.

The parties in Bell v. Fishka, 2022 ONCA 683 were never married or in a relationship but were involved in lengthy and contentious family law proceedings before the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court, and the Court of Appeal. They had a 12-year-old child who lived with the appellant. The appellant was unsuccessful in many proceedings that she brought to court and was subject to several unpaid costs orders.

Justice Carolyn Horkins of the Superior Court issued an August 2021 order directing the appellant to pay $24,436.63 by Oct. 12, 2021, as security for the respondent’s costs relating to her appeals from orders made by Justice John Alexander Finlayson of the Ontario Court of Justice. The August 2021 order barred her from filing further motions or seeking further relief until she complied with Justice Finlayson’s orders. Justice Horkins also made an October 2021 order awarding the respondent $7,000 as costs of the motion for security for costs.

In January 2022, the Divisional Court dismissed the appellant’s appeal from Horkins’ orders. Though she failed to pay the security or the motion’s costs, the appellant sought leave to continue with her appeals. The respondent moved to dismiss her appeals under r. 1(8) of the Family Law Rules, O. Reg. 114/ 99.

In May, Justice Sharon Shore of the Superior Court issued a final order dismissing the appellant’s appeals from Finlayson’s orders and from an interim order of Justice Heather Katarynych of the Ontario Court of Justice. Shore concluded that the appellant’s failure to comply with Horkins’ orders triggered r. 1(8), which made dismissal possible.

The appellant filed two appeals from Shore’s order. The respondent brought a motion seeking dismissal of the appeals under r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 104.

Appeals frivolous

The appellate court allowed the respondent’s motion and dismissed the appeals for being clearly frivolous, vexatious, and abusive of the court’s process. The appellant repeatedly litigated already settled issues and deliberately failed to comply with orders, the court said.

The appellant’s notices of appeal failed to identify legally tenable errors in Shore’s decision, failed to explain why she did not comply with Horkins’ orders, and simply reiterated her unsuccessful arguments seeking to set aside those orders, the appellate court held. Shore had jurisdiction to dismiss all the appeals due to her failure to comply with Horkins’ clear orders, the court added.

According to the appellate court, allowing the appellant to continue with her appeals would enable her to ignore the consequences of her breaches of court orders, to endlessly re-litigate issues, and to continue abusing the court’s process. Lastly, permitting the appellant to proceed would be grossly unfair to the respondent and their child, who both deserved finality, the court said.