“The Family Law Rules do not address the procedure applicable to seeking leave to institute a new proceeding in the face of a [Courts of Justice Act] CJA s. 140(1) vexatious proceeding order. As a result, I issue these directions to the wife regarding her leave application.
Section 140 of the Courts of Justice Act, which applies to family litigants who are subject to a vexatious proceedings order, provides that:
• a person subject to a vexatious proceedings order who seeks leave to institute or continue a proceeding must do so by way of application (s. 140(3));
• relief that may be sought on a section 140 (3) application is restricted to the granting of leave to institute or continue a proceeding, and rescission of the vexatious proceedings order. No other relief may be sought in the application (s. 140(4)(b); and,
• the Attorney General is entitled to be heard on the application (s. 140(4)(d)).
Procedural rules governing applications for leave to institute proceedings under CJA section 140 (3) are set out in Rule 38.13 of the Rules of Civil Procedure. There is no equivalent rule under the Family Law Rules. The key provisions of Rule 38(13) of the Rules of Civil Procedure are that:
• The application shall be made in writing, unless a judge orders otherwise (R. 38.13(2))
• The application shall be commenced by filing both a notice of application and an application record (R. 38.13(3))
• The notice of application, application record and, if applicable, factum, must be served on all parties as well as on the Attorney General of Ontario (R. 38.13(6)), and proof of service must be filed
• The court shall not make an order under subsection 140(4) of the Courts of Justice Act granting leave to institute or continue a proceeding, or rescinding an order made under CJA s. 140(1), without giving the other parties and the Attorney General of Ontario an opportunity to serve and file a respondent’s application record and factum. (R. 38.13(10))
Rule 1(7) of the Family Law Rules, “Matters Not Covered in Rules”, governs in this case. It provides:
If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
I set out directions applicable to this case below by analogy to the Rules of Civil Procedure, taking into context the history of the litigants and the oral argument and written materials filed to date.
Directions on Procedure re Rule 140(3) Application
I give the following directions:
(1) The matter must be commenced by way of application in Form 8, pursuant to Rule 8 of the Family Law Rules.
(2) Pursuant to CJA s. 140(4)(b), the only relief that can be sought is an order for leave to commence the proceedings identified in the application. This is not a motion to vary a foreign support order or a motion to register a foreign order, but an application for leave to commence proceedings under CJA s. 140(3). This falls within the “Other” category on the Form 8, Claim by Applicant, page 4.
(3) The matter is generally subject to the Family Law Rules unless I specify otherwise.
(4) The application must be accompanied by an application record, which by analogy to Rule 38.09(2) of the Rules of Civil Procedure, shall contain:
(a) a table of contents describing each document, including each exhibit, by its nature and date and, in the case of an exhibit, by exhibit number or letter;
(b) a copy of the notice of application;
(c) a copy of all affidavits and other material served by any party for use on the application; and
(e) a copy of any other material in the court file that is necessary for the hearing of the application.”