Cox v Novosilets, 2014 ABQB 729

Court of Queen ’ s Bench of Alberta Citation: Cox v Novosilets, 2014 ABQB 729 Date: 20141205 Docket: 070790431V01001, 060315991V101001,121290035F101001, 110017159F101001,CFC:131514/az Registry: Calgary Between: Gary Cox Appellant - and - Elena Novosilets Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice John S. Little _______________________________________________________ I. Issue

[ 1 ] Mr. Cox appeals a February 28, 2014 Order of Judge N.W. D’Souza that awarded costs of $1000 to Ms. Novosilets. II. Dismissal of the Appeal [ 2 ] Under section 9(2) of the Provincial Court Procedures (Family Law Act) Regulation (149/2005) (the “Regulation”), an appeal to the Court of Queen’s Bench of an order for costs from Provincial Court cannot be heard without leave of the Provincial Court: 9(1) Subject to subsection (2), a party may appeal to the Court of Queen’s Bench any decision of the Court. 9(2) A party must apply to the Provincial Court for leave to appeal under subsection (1) where the decision to be appealed (

a) is a consent order or judgment, or (

b) is an order or judgment that relates only to costs. [ 3 ] As leave was not obtained, this appeal is not properly before me and must be dismissed. III. Alternative Grounds for Dismissal [ 4 ] If I am wrong in my determination above, I would dismiss the appeal for the reasons that follow. [ 5 ] The parties have been in litigation on this matter since May, 2006. It commenced by Ms. Novosilets making application for a child support order and a parenting order for a then one year old child. The Court ordered that Mr. Cox pay $562 per month child support and allowed him limited, most of which were parenting access.

Since then, there have been over fifty applications and four appeals in an effort to expand Mr. Cox’s access rights. Those rights have never been materially expanded. Pursuant to the terms of a December 20, 2012 Order, those access rights were suspended, and under a March 28, 2013 Order, he was ordered to undergo a risk assessment. That Order too is under appeal. [ 6 ] Mr. Cox was not at or represented at the appeal hearing. He anticipated being out of town and submitted written materials as permitted by an October 20, 2014 Order of Madam Justice R. Nation. He also sent a Ms.

Medosa in his stead, though she does not have standing to act for him in this Court. IV. Grounds [ 7 ] Mr. Cox’s grounds for appeal are found incorporated into his March 21, 2014 Notice of Appeal, in a later filed brief filed September 14, 2014, and in an untitled document filed October 21, 2014. The substance of his grounds can be summarized as follows: 1. As a well site geologist, he is often in remote areas when he would otherwise be in court, and that this violates his mobility rights under

section 6 of the Charter of Rights and Freedoms to earn a living anywhere in Canada. “Pursuing my livelihood, is exactly what I was doing on February 28, 2014, the date, that I was fined, by the provincial court Judge N.W. D’Souza. The judge was aware, that I was working, in a remote area, that was a 12 hour drive from Calgary. The judge was clearly aware of this fact, and continued to fine me.” (page 2 of the brief). 2. Costs should not have been as high as $1000 because Ms. Novosilets was not working and was not represented by counsel at the hearing. (page 3 of the brief) 3.

That the order being appealed “represents a clear example of abuse of Judicial Power. That you send a message that this type of abuse is unacceptable and will not be tolerated.” (page 2 of untitled document). V. Analysis and Reasons 1. Ground 1 - Charter [ 8 ] Mobility rights guaranteed under the Charter are not to be confused with consequences that a person may incur as a result of exercising those rights. Because he knew that he would be working, Mr. Cox sent a lay person as his agent to the February 28, 2014 hearing.

But it is clear that that agent was not able to deal with any substantive issues, all of which required Mr. Cox’s personal appearance. The consequence was that the judge imposed costs both to compensate Ms. Novosilets for her frequent appearances and in an effort to sanction Mr. Cox, not for working but for failing to appear at a hearing that he had requested. 2. Ground 2 - Amount [ 9 ]

Section 93 of the Family Law Act SA 2003, c. F-4.5 permits a Provincial Court Judge broad discretion to order costs:

93. Subject to the regulations, the court may at any time in a proceeding before the court and on any conditions that the court considers appropriate award costs in respect of any matters coming under this Act. [ 10 ] Section 10(1) of the Regulation provides that “the Court may at any time in any proceeding before it, on any condition it considers appropriate, award costs of any matter under the Act.” [ 11 ] Neither the Act nor the Regulation proscribes a judge’s discretion respecting costs or restricts those costs to costs actually incurred by a party. 3.

Ground 3 - Abuse [ 12 ] This power to award costs and the reasons therefor have been affirmed by the Alberta Court of Appeal in M(JD) v L( AM) , 2010 ABCA 219. The Court of Appeal in that decision makes it clear that the purposes of a costs order are two-fold: first, it can defray the costs and inconvenience to the party bearing the litigation expense, in this case Ms.

Novosilets, and second, it can reward good conduct and discourage “not-so-good conduct.” [ 13 ] It is clear from the transcript of the February 28, 2014 application that Judge D’Souza relied upon both purposes in awarding costs – see Appendix One. [ 14 ] Given the multiplicity of applications brought by Mr. Cox with limited success, I cannot find that the Provincial Court judge exercised his discretion unreasonably or that it constituted an “abuse of power”. VI. Disposition [ 15 ] For those reasons, I would dismiss the appeal if it were properly before this court. [ 16 ] Ms.

Novosilets at the appeal hearing informed the Court that she was not seeking further costs, and I therefore decline to award them. VII. Application of

section 91 and 92 of the Family Law Act [ 17 ] Further, I have considered whether sections 91 and 92 of the Family Law Act ought to be invoked to prevent further frivolous and vexatious applications by Mr. Cox and to prevent this Court from having to deal with his fourth appeal. [ 18 ] Sections 91 and 92 read as follows: 91(1) Where the court is satisfied that a person has made a frivolous or vexatious application to the court, the court may prohibit that person from making further applications under this Act without the leave of the court.

(2) The court, before granting leave under subsection (1), may impose any terms as a condition of granting leave and make any other order in the matter as the court considers appropriate. 92(1) The court may at any stage in any proceedings before the court and on any conditions that the court considers appropriate grant a stay of proceedings.

(2) The court may stay an order or declaration made under this Act subject to any terms or conditions that the court considers appropriate. [ 19 ] Among the criteria for determining whether an application is frivolous and vexatious are the following which are discussed in Dykun v Odishaw , 2000 ABQB 548 at paragraph 42 :

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.

…

g) The respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceeding. [ 20 ] The following statements (individual errors are not identified) in Mr. Cox’s written submissions respecting the fourth appeal (this being the third) are relevant to the first criterion above: This order of requiring a risk assessment is a flagrant miscarriage of justice. It is time that this situation be corrected. It was not until sometime later after I had sent out the subpoenas, copies of which I have in my possession.

That I realized that the supposed hearing was in docket court, and I then realized that the Judge had misled me, there was to be no hearing despite his assurance that I would receive a proper hearing, as per the order for Court of Queen’s Bench Justice Nixon on I tried to bring the matter forward for clarification from the judge, but the bring forward application was denied. When Judge O’Gorman’s Judgment Memorandum is compared with the actual transcript from that day in court, with which he makes many references to, are just not supported by the transcript (proof).

Feb. 28, 2014, I was working in a remote area of B.C. (12 hour drive to Calgary) …Judge D’Souza chose to fine me $1000. That matter is under appeal and will be heard on Nov. 6. I might note, this was also a violation of my Canadian Charter of rights and freedoms , with regard to the mobility

section … I want the matter to be heard by an impartial Judge, as I feel that there are clear indications that Judge D’Souza is not impartial, but bias against me, and not willing to rule contrary to his colleague Judge O’Gorman. I am requesting a special hearing into this case, at the Court of Queen’s Bench level. [ 21 ] These statements tend to repeat grounds and issues raised in the immediate appeal and in my view are likely to be disposed of in similar fashion. [ 22 ] While Mr.

Cox’s stated objective of gaining increased access to his child is admirable, it is clear from a review of the court file as a whole that Mr. Cox has made frequent and numerous applications with extremely limited success. [ 23 ] Mr. Cox’s first two appeals were unsuccessful, as the third has now been determined to be. [ 24 ] In my view, Mr. Cox’s applications are proving to be frivolous and vexatious as contemplated in

section 91 of the Family Law Act . I will leave determination of that issue with the Provincial Court with the guidance above. [ 25 ] But I see no need for the Court of Queen’s Bench to be further burdened by Mr. Cox’s propensity to litigate for its own sake. For that reason, pursuant to section 92(1) of the Family Law Act , I order that Mr. Cox’s appeal filed September 19, 2014 against the September 11, 2014 Order of Judge D’Souza be stayed. Heard on the 6 th day of November, 2014 in the City of Calgary, Alberta. Dated at the City of Red Deer, Alberta this 28 th day of November, 2014.

John S. Little J.C.Q.B.A. Appearances: Gary Cox (by written submissions) Elena Novosilets Appendix 1: Transcript Excerpts from February 28, 2014 Hearing The following excerpts from the February 28, 2014 hearing are relevant (Ms. Walia is counsel for the child) Page 1, lines 29 to 41 MS. WALIA: Sir, she – he is on behalf—she is coming on behalf of Mr. Cox. Mr. Cox is not here. He is somewhere working in B.C. MS. MEDOSA: B.C. THE COURT: Okay. MS. WALIA: Twelve hours’ ride from here. He’s asking to get this adjourned over to June 9th and I don’t know, I haven’t spoken to (INDISCERNIBLE). I’m not sure.

THE COURT: All right. So young Madison is in a limbo stage. Page 2, lines 1 to 29 MS. MEDOSA: Yes, Your Honour. THE COURT: And I do not know what Mr. Cox is doing, or when he is ever going to appear in court. Okay. And at this particular moment, there was an order that was put in place htat he was going – he debated paternity. He was going to have a DNA test done. A Court has also ordered a risk assessment of Mr. Cox. He seems to have had a real issue with regard to doing that.

And at the last go- round I was the Judge and this file is now squarely, square on my desk, so I will be the one that will be listening to this thing. On November the 21st of 2013 I attempted to phone Mr. Cox. There was no answer. We tried that on a number of occasions, three different occasions. We then sent out a letter and there was correspondence that came my way from Mr. Cox saying that he couldn’t make it. Here it is, November the 2nd is what it was. He wanted it adjourned then. Alternatively, as a last resort, I suppose, would be to conduct the hearing via cell phone.

So with no disrespect to you because you are just the messenger, okay – MS. MEDOSA: Yes, Your Honour. THE COURT: --Mr. Cox appears – when is he ever going to appear? Because I can do one of two things here. I can give you that adjournment until June, or I can say enough is enough, his application to see Madison is dismissed. Do you understand what I am saying? MS NOVOSILETS: Yes, Your Honour. THE COURT: So enough is enough, is what I am saying. Page 6, Lines 20 to 38 THE COURT: Okay. And given the fact that he is not here today and this thing is dragging on, and Ms.

Novosilets, you have appeared how many times, do I even dare count these up? I mean, I see the docket, madam clerk, what does that mean when it says a number beside a file that says 53 and 51? THE COURT CLERK: That is the number of applications. THE COURT: Okay, so this has been in this court 51 times for a variation of parenting or 53 times for a variation –

MS. NOVOSILETS: It’s been a long time. THE COURT: So it’s been a long time. And because Mr. Cox is not here I am going to award costs against him payable in the amount of $1000 and those costs must be paid between now and the 26th and they are payable through the clerk of the court to Ms. Novosilets for having her keep coming back. Okay. If he doesn’t pay the costs by then, this matter will be dismissed.”