



COURT OF APPEAL FOR ONTARIO

CITATION: Childs v. Childs, 2019 ONCA 717

DATE: 20190911

DOCKET: M50451 (C61581)

Lauwers, van Rensburg and
    Roberts JJ.A.

BETWEEN

Peter
    Childs

Moving Party

and

Michael Childs, Andrew Childs, Caroline Childs,

Eileen Vera Childs and Wendy Griesdorf, and BMO Trust Company and

the Ontario Public Guardian and Trustee

Responding Parties

Peter Childs, self-represented

Michael Childs, Andrew Childs and
    Caroline Childs, self-represented

Debra Stephens, for Wendy Griesdorf

Heard: In writing

REASONS FOR DECISION

[1]

This is a matter involving four children of
    Eileen Vera Childs. We refer to them by their first names for clarity and
    without any sense of disrespect. Peter brings a motion to this court pursuant
    to r. 59.06(2) to vary or quash this courts order of June 20, 2017, disposing
    of the appeals in C61581 and C62716 (the Appeals).

[2]

In accordance with this courts advice in
Hoang
    v. Mann Engineering Ltd.
, 2015 ONCA 838, at para. 15, the r. 59.06 notice
    of motion was screened by the court. Peter and those he named as respondents to
    the motion were given notice of the proposed making of an order staying or
    dismissing the motion under rule 2.1.02 of the
Rules of Civil Procedure
and were invited to make written submissions. Rule 2.1.02 provides that the
    court may, on its own initiative, stay or dismiss a motion if it appears on its
    fact to be frivolous or vexatious or otherwise an abuse of the process of the court.

[3]

Peter and Caroline, who were the appellants in
    the Appeals, made written submissions asking that the r. 59.06 motion not be
    dismissed. Michael, a respondent to the Appeals, and Wendy Griesdorf, who had
    acted as counsel for Mrs. Childs under s. 3 of the
Substitute Decisions Act
,
    1992, S.O. 1992, c. 30 (the Section 3 Counsel) in the litigation and was an
    intervenor in the Appeals, asked the court to dismiss the motion under r.
    2.1.02.

[4]

It is unnecessary to recite here the full history
    of the litigation that led to the Appeals, and the issues that were in dispute
    between the parties, which are set out in detail in the courts reasons in the
    Appeals. It is sufficient to note that the litigation involved the competing
    guardianship applications of two pairs of siblings in respect of the personal
    care and property of Mrs. Childs, arising out of her incapacity.

[5]

By the time the applications were heard in the
    Superior Court, there was an agreement, facilitated by the Section 3 Counsel,
    to the appointment of BMO Trust Company (BMO) as guardian of property. The
    only outstanding matter in dispute, apart from costs, was how much Caroline would
    be paid for the care of Mrs. Childs. The applications judge made an order
    appointing Caroline guardian for personal care and providing for her
    compensation. A letter from Carolines counsel shortly after the application
    decision was released precipitated a motion under r. 59.06 by Section 3 Counsel.
    Ultimately the applications judge ordered that Michael and Caroline were to be
    joint guardians of Mrs. Childs personal care in accordance with a guardianship
    plan filed by Michael and he increased Carolines compensation going forward.
    There was also an unsuccessful motion by Peter, supported by Caroline, to compel
    the passing of accounts by BMO and the Section 3 Counsel. Costs orders were
    made by the applications judge and the motion judge, requiring, among other
    things, that Peter and Caroline pay part of the costs of the other parties from
    their expected inheritance from Mrs. Childs estate.

[6]

Before the Appeals were heard, Simmons J.A.
    considered a number of motions, including motions by Peter and Caroline for
    leave to appeal the costs orders. Among other things, Simmons J.A. deemed
    struck all submissions and evidence in Peter and Carolines appeals
    documentation relating to the quantum of costs awarded to Section 3 Counsel and
    BMO and relating to any submissions and evidence not made or filed in the court
    below. And, in granting leave to appeal costs, Simmons J.A. precluded their
    challenge to the quantum of the costs awarded.

[7]

Peter and Caroline moved to set aside or vary
    the Simmons Decision, including to permit them to argue the quantum of the
    costs awarded to Section 3 Counsel and BMO. Their review motion was heard in
    conjunction with and considered at the outset of the hearing of the Appeals.

[8]

The Appeals and the review motion were dismissed
    with reasons reported at 2017 ONCA 516. Among other things, in disposing of the
    review motion, the court upheld Simmons J.A.s refusal to permit Peter and
    Caroline to pursue any appeal respecting the quantum of costs awarded in favour
    of Section 3 Counsel and BMO, and her decision to strike Peter and Carolines
    documentation relating to the quantum of costs below. In disposing of the
    Appeals, this court stated in its reasons, at para. 50:

In our view, there is no merit to these
    appeals. They are the culmination of unnecessarily protracted litigation that
    has depleted Mrs. Childs estate, wreaked havoc on the emotional and financial
    health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully
    impugned the applications judge. It is past time for the litigation over Mrs.
    Childs to end.

Leave to appeal to the Supreme Court
    of Canada was refused in May 2018: 2018
CanLII 48390
.

[9]

Peter now moves to reopen the Appeals. He
    asserts that, after the disposition of the Appeals, new information became
    available that had been deliberately concealed by other parties to the
    litigation, which, if known, would reasonably have changed the decision of this
    court in the Appeals. The new information consists of quarterly reports of
    Mrs. Childs property guardian for the period April 2015 to December 2016 that
    were released on September 21, 2017, which reveal a $43,000 payment by BMO (as
    property guardian) to Section 3 Counsel for appeal work on February 24, 2016,
    and a transfer from Nesbitt Burns to BMO of $442,000 on May 19, 2016
    (incorrectly referred to in some places in Peters materials as having occurred
    on May 19, 2015).

[10]

Peter contends, among other things, that the
    $43,000 payment speaks to an inappropriate relationship between Section 3
    Counsel and BMO, and, with respect to the $442,000 transfer he does not allege
    that there is any money missing but questions what legal instrument was used
    for the transfer from Nesbitt Burns to BMO. He alleges that the former Section
    3 Counsel was implicated in the transfer to BMO (although she was released as
    Section 3 Counsel before the transfer was made), and that this again suggests
    an inappropriate relationship and litigation agreement. Peter makes a number
    of other allegations about an undisclosed and improper litigation agreement
    between BMO, Section 3 Counsel and other parties to the litigation, including
    the fact that the parties communicated with one another in respect of the issue
    of costs.

[11]

Submissions were received from Peter and
    Caroline, opposing a r. 2.1.02 order, and from Michael and the former Section 3
    Counsel, supporting such an order.

[12]

In his submissions, Peter argues that the new
    information suggests that BMO, Michael and Section 3 Counsel were party to an
    undisclosed litigation agreement, breached their fiduciary duty to Mrs. Childs
    and misled the courts to achieve favorable decisions. Caroline repeats several
    of Peters allegations about an alleged improper relationship between Section 3
    Counsel and BMO and misconduct by the Section 3 Counsel.

[13]

Michael asks that Peters motion be dismissed
    under r. 2.1.02. He contends that it is part of ongoing litigation by Peter to allege
    a sinister conspiracy between Section 3 Counsel, BMO and himself. He contends
    that the new information was known to everyone at the time of the Appeals,
    except for the fact that Section 3 Counsel, who had submitted dockets for her
    appeal work of $44,000, (which according to Caroline were in the record before
    this court) had in fact been paid $43,000 by the time the Appeals were heard. As
    Mrs. Childs litigation guardian, Michael is pursuing this issue, which he
    describes as an oversight and other omissions and problems in BMOs passing
    of accounts. Peter was recently denied standing in those proceedings, his Notice
    of Objection was struck, and he was found to be a vexatious litigant in the
    proceedings, with the primary objective to re-litigate issues which are the
    subject of previous final court orders: 2019 ONSC 2637.  That order is under
    appeal to this court in Court File C66915.

[14]

The former Section 3 Counsel supports the
    dismissal of Peters motion under r. 2.1.02. Responding to the specific
    allegations, she asserts that the alleged new information is neither new nor
    relevant and that Peter continues to attempt to re-litigate matters related to
    Mrs. Childs.

[15]

Having considered Peters notice of motion and
    the submissions filed in response to the Registrars notice, we have determined
    that an order under r. 2.1.02 is not only warranted, but essential in the
    circumstances of this case. Peter is relying on information that is not new
    (except for the oversight of failing to disclose a payment to Section 3
    Counsel for which she had already submitted dockets), and that could not
    conceivably have affected this courts decision in the Appeals.

[16]

The motion is a transparent attempt to continue
    to wage war against the former Section 3 Counsel. Her alleged misconduct is a
    matter that was soundly rejected by this court on its merits, but also on the
    basis that Peter and Caroline had never appealed the order of the applications
    judge striking the parts of their affidavits in which they impugned Section 3
    Counsels conduct (at paras. 90 to 100).

[17]

As such the motion under r. 59.06 to vary or
    quash this courts order dated June 20, 2017, is an abuse of the process of
    this court, and frivolous and vexatious. Pursuant to s. 2.1.02 of the
Rules
    of Civil Procedure

the motion is accordingly dismissed. No further
    motions shall be filed by the moving party in an attempt to reopen or otherwise
    in respect of the Appeals.

P. Lauwers J.A.

K. van Rensburg J.A.

L.B. Roberts J.A.


