B.M., Applicant, – v. –, 2023 NBKB 155

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MONCTON B.M. v. K.R. 2023 NBKB 155 FDM-202-2016 2023/09/13 BETWEEN: B.M., Applicant, – and – K.R., Respondent. DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Moncton, New Brunswick DATE OF HEARING: In Chambers

DATE OF DECISION: September 13, 2023 DeWare, C.J. [ 1 ] On May 11 th , 2023, Justice Danie Roy issued a decision determining that the Applicant, BM, was prohibited from bringing further motions in this proceeding without leave of the Court pursuant to Rule 37.12 of the New Brunswick Rules of Court . [ 2 ] Rule 37.12 states as follows: Prohibiting Motions Without Leave On the hearing of a motion, where the court is satisfied that a party is attempting to delay the proceeding or add to the costs or otherwise abuse the process of the court by frivolous or vexatious motions, it may prohibit that party from bringing further motions in the proceeding without leave. [ 3 ] On September 6 th , 2023, the Applicant filed a further motion in these proceedings.

This motion was brought to my attention to determine if leave would be granted. Leave to file the notice of motion is denied for the reasons that follow. [ 4 ] The relief sought by the Applicant in his notice of motion is set out in the first paragraph as follows:

a) Equal parenting time, under the parenting plan be granted to both parties. This would comprise of a week on, week off, or the equivalent time spread out over two-week intervals. (i.e. Thursday to Monday, alternating weekends)

b) A reduction in child support to reflect the shared time. In general, parents sharing equal time, do not pay child support monthly, and share the Canada Child Tax benefit) [ 5 ] The relief sought by the Applicant is the exact same redress he has pursued in numerous court filings before the Family Division of the New Brunswick Court of King’s Bench since 2016. A trial was held before Justice B. Robichaud on September 28 th , 29 th , 30 th , and October 1 st , 2021, with a decision issued on November 29 th , 2021. Justice B.

Robichaud granted the majority of the parenting time and final decision-making authority to the Respondent. The Applicant appealed Justice B. Robichaud’s decision, and his appeal was dismissed. [ 6 ] In her decision of May 11 th , 2023, Justice Roy set out the various court proceedings following Justice B. Robichaud’s decision in November 2021 at paragraph [39] as follows: After the final decision on November 29, 2021 November 29, 2021: B.M. files a Notice of Motion November 30, 2021: B.M. files a Notice of Motion

December 2, 2021: B.M. files an AffidavitDecember 2, 2021: B.M. files a second AffidavitDecember 15, 2021: B.M. files an AffidavitJanuary 21, 2022: B.M. files a Claim before the SmallClaims Court with K.R. being adefendantJanuary 25, 2022: B.M. filed an Affidavit.January 31, 2022: K.R. filed an AffidavitFebruary 2, 2022: B.M. filed an AffidavitFebruary 8, 2002: B.M. filed an AffidavitFebruary 15, 2022: B.M. files a Notice of Motion.February 18, 2022: B.M. files a Notice of MotionJune 21, 2022: B.M. filed an Amended Claim withthe Small Claims CourtAugust 22, 2022: B.M. files a Notice of MotionAugust 25, 2022: K.R. files a Notice of MotionOctober 4, 2022: B.M. files an AffidavitOctober 13, 2022: B.M. files an AffidavitSeptember 20, 2022: B.M. files an AffidavitSeptember 16, 2022: B.M. files a Notice of Motion andAffidavitSeptember 7, 2022: B.M. files a Financial StatementSeptember 7, 2022: B.M. files a Notice of Motion andAffidavitSeptember 7, 2022: B.M. files a second AffidavitNovember 10, 2022: K.R. files an Affidavit [7] In explaining her reasons for granting the order pursuant to Rule 37.12, Justice Roy stated at paragraphs 60-63 as follows: [60] B.M. argues that any motions that he has filed, it was with good reason and that he is not wasting the court's time.

He adds thathe has not filed a lawsuit against the province of New Brunswick, against the Law Society of New Brunswick or against K.R.’s previouslawyer. With respect to his filing of the Small Claims Action, he says he was told to do so by a Judge of the Court of King's Bench and ajudge of the Court of Appeal. [61] Simply put, B.M. is not happy with the final decision dated November 29, 2021. At the hearing of this matter, he said that thetrial held from September 28-30 and October 1, 2021, was a waste of time.

In my view, this illustrates his complete disregard for and hismisuse of the court’s process. [62] I note as well that in his affidavit sworn on December 15, 2021, B.M. criticizes K.R. for following an Order of the Court. He saidthat K.R. prefers to follow the current order to the very detail. He deposed as follows: [...] has offered five times to set up a shared agreement with K.R. because he had a furnished cottage in Shediac, and now a full twobedroom apartment at G[…] Street. All of these times, [...] has stated “No”. She would prefer to follow the current order to the verydetail.

Even though [...] is living in Dieppe, he and [...]y are meeting in Sussex to transition C.M. between parents’. [...] also has noother choice because K.R. is blocking B.M.'s efforts when he parks on the street at [...]. [63] I am satisfied that B.M. is abusing the process of the court by frivolous and vexatious motions and it needs to stop. Not only doesit have a significant impact of K.R. in the form of harassment, it is also consuming time and resources of the Court. [8] The Applicant’s notice of motion filed on September 6th, 2023 revisits the exact same issues that have been previouslycanvassed by this Court.

The Applicant suggests there has been a material change of circumstances, but no material change ofcircumstances is set out in the materials. [9] In my view, it is appropriate to consider the request for leave as a chambers matter based on the materials filed by the Applicant.In Bossé v. Chiasson & Roy, (NBCA), Chief Justice Richard confirmed such an approach can be appropriate on

certain circumstances, noting at paragraph [6] as follows: Following my review of the notices of motion and the affidavits filed in the present case, I instructed the office of the Registrar to inform the parties I intended to consider the motions on the basis of a written record.

I opted against an oral hearing because I agree with Justice Baird that “[t]he purpose of [Rule 76.1] is to allow the Court to control its own process and to prevent the abuse of that process by a litigant repeatedly pursuing unmeritorious proceedings that needlessly result in the expenditure of administrative and judicial resources, and, of course, cause the attendant unnecessary expense to other parties” (para. 21). In my view, where appropriate, as in this case, disposing of motions of this type on the basis of a written record will secure a just, least expensive and most expeditious resolution of the issues .

It may be that such an approach will not be appropriate in every instance, especially where the question of whether leave should be granted is at least arguable, but it is certainly apt in this case. [Emphasis mine.] [ 10 ] In the present matter, to hear the parties on the leave request would further squander judicial resources and put the Respondent through the stress of yet another court appearance.

In my view, this is an appropriate circumstance to consider the leave request based upon the written materials. [ 11 ] The clerk of the Court in the Judicial District of Moncton is instructed to return the motion materials filed on September 6 th , 2023, to the Applicant. The Applicant’s request for leave to file the notice of motion is denied. DATED at Moncton, N.B., this 13 th day of September 2023. _______________________________________ Tracey K . DeWare Chief Justice of the Court of King’s Bench of New Brunswick