Kallaba v. Bylykbashi

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Cronk, Lang and Juriansz, JJ.A.
• Citation: (2006), 207 O.A.C. 60 (CA)
• Date: 09 September 2005
• Subject Matter: FAMILY LAW,PRACTICE,COURTS

Kallaba v. Bylykbashi (2006), 207 O.A.C. 60 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. FE.050

Besime Kallaba (applicant/appellant) v. Bashkim (Brian) Bylykbashi (respondent/respondent)

(C42537; M32086)

Indexed As: Kallaba v. Bylykbashi

Ontario Court of Appeal

Cronk, Lang and Juriansz, JJ.A.

February 14, 2006.

Summary:

A husband and wife separated in 1994 and divorced in 1998. Following the separation, the parties became involved in protracted litigation which was primarily concerned with custody of and access to the children of the marriage and child support. Eventually a consent order awarded custody to the husband and liberal access to the wife and ordered the wife to pay monthly child support. The order did not bring closure to the litigation. In November 2003, the wife moved for access to the children; the return of a contempt motion which she had previously commenced respecting access; a rescission of arrears of child support; a termination of her ongoing child support obligation; and, for the first time, spousal support. The husband asserted that the contempt motion was a vexatious claim to harass him and cause him financial hardship. The husband moved for security for costs, to strike the wife’s pleadings, for an order requiring that the wife seek leave prior to bringing any further motions and for damages for the wife’s bad behaviour.

The Ontario Superior Court dismissed the wife’s spousal support application and issued a vexatious litigant order prohibiting her from either instituting any further proceedings or continuing any proceedings previously commenced by her in any court as against the husband concerning any matter arising out of their marriage except with leave. The wife appealed. The husband moved to quash or stay the appeal on the ground that the wife had not obtained leave to appeal. Alternatively, the husband opposed the appeal on the merits.

The Ontario Court of Appeal, Lang, J.A., dissenting, allowed the appeal from the vexatious litigant order but dismissed the appeal from the denial of spousal support.

Courts - Topic 560

Judges - Powers - Authority to act ex mero motu (on own motion) - Spouses divorced in 1998 - In November 2003, the wife moved for, inter alia, access to the children and the return of a contempt motion concerning her access to the children - The husband moved for security for costs, to strike the wife’s pleadings, for an order requiring that the wife seek leave prior to bringing any further motions and for damages for the wife’s bad behaviour - A motions judge issued a vexatious litigant order against the wife (Court of Justice Act, s. 140(1)) - The Ontario Court of Appeal quashed the order - Relief under s. 140(1) had not been identified by the parties or the motion judge as being in issue during the hearing, nor were the parties afforded an opportunity to make submissions concerning such relief - No meaningful opportunity was provided to the wife to be heard on the issue - At the very least, hearing fairness was impaired because the parties were not on the same page concerning the relief that the motion judge believed was under consideration - Even if the husband’s written materials were viewed as invoking relief in the nature of a s. 140(1) order, the wife’s right to hearing fairness was compromised - See paragraphs 43 to 51.

Family Law - Topic 4019

Divorce - Corollary relief - Maintenance awards - Appeals - Spouses divorced in 1998 - In 2003, the wife moved for, inter alia, spousal support - A motions judge dismissed the wife’s support request summarily - The Ontario Court of Appeal dismissed the appeal, stating that while not a trial judge, the motions judge still had to exercise discretion in balancing the statutory factors and applying them to the particular circumstances before him - The reasons for significant appellate deference to the decisions of trial judges in relation to support orders applied to the discretionary component of a summary judgment concerning support claims - See paragraph 91.

Family Law - Topic 4170

Divorce - Practice - Appeals - Duty of appellate court - Discretionary orders - [See Family Law - Topic 4019 ].

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - [See Courts - Topic 560 ].

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - Spouses divorced in 1998 - In November 2003, the wife moved for, inter alia, access to the children and the return of a contempt motion concerning her access to the children - The husband moved for security for costs, to strike the wife’s pleadings, for an order requiring that the wife seek leave prior to bringing any further motions and for damages for the wife’s bad behaviour - A motions judge issued a vexatious litigant order against the wife (Court of Justice Act, s. 140(1)) - The wife asserted that the motions judge lacked jurisdiction to make the order because the husband had sought relief via a motion rather than “on application” as required by s. 140(1) - The husband asserted that the availability of a vexatious litigant order should not turn on formalistic or technical distinctions between motions and applications - The Ontario Court of Appeal opined that the purpose of s. 140(1) might best be fostered by a liberal interpretation of “on application” but disposed of the appeal on a different basis - See paragraphs 35 to 42 - Lang, J.A., dissenting, stated that an application was both the mandated process and the process most suitable to ensure that an allegedly vexatious litigant received a full and fair hearing without unduly burdening the other litigant with the cumbersome weight of an action - See paragraphs 105 to 140.

Practice - Topic 46

Actions - Commencement of - Bars - Vexatious litigant - A wife appealed a vexatious litigant order issued pursuant to s. 140(1) of the Courts of Justice Act - The order directed that no further proceedings be instituted by the wife as against the husband with respect to "any matter arising out of their previous marriage in any court" and that "any such proceeding previously instituted" by the wife "in any court" not be continued, except by leave - The husband asserted that the wife required leave to appeal - The wife asserted that the word “proceeding” in s. 140(1) did not include appeals to the Court of Appeal - The Ontario Court of Appeal stated that the order’s broad language encompassed appeals to the Court of Appeal - Further, the word “proceeding” in s. 140(1) included appeals to the Court of Appeal - However, the vexatious litigant order was a final order, appealable as of right to the Court Appeal (s. 6(1)(b)) - Section 140(1) suspended the operation of s. 6(1)(b) except where the proceeding sought to be initiated was an appeal from the vexatious litigant order itself - Accordingly, the wife did not require leave to appeal - See paragraphs 22 to 34.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Family Law - Topic 4019 ].

Practice - Topic 8871

Appeals - Leave to appeal - Application for - [See third Practice - Topic 46 ].

Practice - Topic 8984

Appeals - When appeal available - From final judgment order - [See third Practice - Topic 46 ].

Cases Noticed:

Varma v. Rozenberg et al., [1998] O.A.C. Uned. 435 (C.A.), refd to. [para. 26].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 38].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 38].

Ballentine v. Ballentine (2003), 173 O.A.C. 368; 65 O.R.(3d) 481 (C.A.), refd to. [paras. 40, 109, footnote 1].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 91].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 104].

Mascan Corp. v. French (1986), 8 C.P.C.(2d) 187 (Ont. H.C.), affd. (1988), 26 O.A.C. 326; 64 O.R.(2d) 1 (C.A.), refd to. [para. 109, footnote 1].

Lang, Michener, Lash and Johnston v. Fabian (1987), 59 O.R.(2d) 353 (H.C.), refd to. [para. 109, footnote 1].

Kitchener-Waterloo Record Ltd. v. Weber (1986), 53 O.R.(2d) 687 (S.C.), refd to. [para. 109, footnote 1].

Ostrovskaia v. Ostrovsky et al., [2001] O.T.C. 773 (Sup. Ct.), refd to. [para. 109, footnote 1].

Coady v. Boyle, [2005] O.A.C. Uned. 287; 13 R.F.L.(6th) 257 (C.A.), refd to. [para. 109, footnote 1].

Ferenczi v. State Farm Mutual Automobile Insurance Co. (2004), 4 C.P.C.(6th) 354 (Sup. Ct.), refd to. [para. 109, footnote 1].

Contino v. Leonelli-Contino (2005), 341 N.R. 1; 204 O.A.C. 311 (S.C.C.), refd to. [para. 110].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), refd to. [para. 112].

Winkler v. Winkler, [1991] 2 W.W.R. 369; 70 Man.R.(2d) 47 (Q.B. Fam. Div.), affd. [1992] 1 W.W.R. 631; 70 Man.R.(2d) 45 (C.A.), refd to. [para. 114].

Foy v. Foy (No. 2) (1979), 26 O.R.(2d) 220 (C.A.), leave to appeal refused [1979] 2 S.C.R. vii; 31 N.R. 120, refd to. [para. 115].

Vexatious Actions Act, Re; Jones, Re (1902), 18 T.L.R. 476, refd to. [para. 115, footnote 3].

Attorney-General v. Vernazza, [1960] 3 All E.R. 97 (H.L.), refd to. [para. 115, footnote 4].

Chilian et al. v. Augdome Corp. et al. (1991), 44 O.A.C. 263; 2 O.R.(3d) 696 (C.A.), refd to. [para. 127, footnote 10].

Walcott v. Ontario (Minister of Citizenship, Culture and Recreation), [1997] O.T.C. Uned. 447 (Gen. Div.), affd. [1998] O.J. No. 791 (C.A.), leave to appeal refused (1998), 234 N.R. 196; 119 O.A.C. 395 (S.C.C.), refd to. [para. 129].

S. v. S. (1998), 115 B.C.A.C. 146; 189 W.A.C. 146 (C.A.), refd to. [para. 139, footnote 12].

Stefureak v. Chambers, [2005] O.T.C. Uned. 332 (Sup. Ct. Fam. Ct.), refd to. [para. 142].

Law Society of Upper Canada v. Zikov (1984), 47 C.P.C. 42 (Ont. H.C.), refd to. [para. 145, footnote 13].

Winkler v. Winkler (1987), 46 Man.R.(2d) 150 (C.A.), refd to. [para. 145, footnote 13].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 146].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.), refd to. [para. 150, footnote 14].

Aguonie v. Galion Solid Waste Material Inc. et al. (1998), 107 O.A.C. 114; 38 O.R.(3d) 161 (C.A.), refd to. [para. 150, footnote 14].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 140(1) [para. 20].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 162 to 164 [para. 125, footnote 9]; 399, 400 [para. 115, footnote 5].

Watson, Garry D., and McGowan, Michael, Ontario Civil Practice 2006 (2005), p. 5 [para. 119, footnote 8].

Watson, Garry D., and McGowan, Michael, Ontario Supreme and District Court Practice 1985 (1984), p. 4 [para. 112, footnote 2].

Counsel:

Patrick Di Monte, for the appellant;

D. Smith, for the respondent.

These matters were heard on September 9, 2005, by Cronk, Lang and Juriansz, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on February 14, 2006, with the following opinions:

Cronk and Juriansz, JJ.A. - see paragraphs 1 to 94;

Lang, J.A., dissenting - see paragraphs 95 to 169.