Jen Yii Liew

The applicant, Carmela Maria Capone, moved to quash the appeal of the respondent, Zoran Fotak, from two interlocutory orders made in ongoing family law proceedings.

The motion judge had ordered the respondent to bring a stay motion as a condition for his jurisdictional challenge to be heard, clarifying that no decision on the merits of the jurisdictional challenge had been made.

The Court of Appeal found the orders to be interlocutory and not appealable, as they did not determine any substantive claim or defence.

Consequently, the appeal was quashed.

This endorsement addresses procedural issues arising from a prior order in a family law matter concerning child support.

The court clarifies the scope of motions, enforces strict filing limits, and dismisses numerous requests for disclosure and questioning as premature or outside the established timetable.

The judge emphasizes adherence to previous directions and the Notice to the Profession, aiming to streamline the proceedings for the temporary child support motion.

The respondent brought a motion to set aside ten previous court orders, arguing the court lacked jurisdiction because he was not properly served under the Hague Service Convention.

The applicant brought a cross-motion seeking to refuse the respondent an audience because he remained in continuous breach of those orders.

The court held that a litigant cannot ignore court orders and still demand an audience.

The court directed that the respondent must first bring a motion to stay the impugned orders; if successful, he may proceed with his jurisdiction motion, but if unsuccessful, he will be refused an audience until he complies.

The applicant husband initiated parallel divorce proceedings in Tennessee, prompting the respondent wife to seek an anti-suit injunction and enforcement of prior Ontario arbitration awards.

The court found the Ontario arbitration awards valid and enforceable, rejecting the applicant's arguments to set them aside based on statutory provisions or alleged lack of consent.

The court also granted the anti-suit injunction, determining Ontario remained the appropriate forum with the closest connection to the divorce application and parties, and that no injustice would result from preventing the Tennessee action.

The applicant sought summary judgment to dismiss the respondent's claims, primarily concerning a Florida condominium, arguing lack of jurisdiction, forum non conveniens, or no genuine issue for trial based on a domestic contract.

The respondent brought a cross-motion to amend her answer.

The court granted the respondent leave to amend her answer, found that it had jurisdiction over the dispute, and determined that Ontario was the convenient forum.

The court also found a genuine issue for trial regarding the interpretation of the domestic contract and declined to sever the divorce from corollary issues, as it would disadvantage the respondent.

The respondent sought an urgent hearing for his long motion to set aside ten prior court orders, arguing lack of jurisdiction due to improper service under the Hague Service Convention.

He claimed urgency due to his precarious immigration status, inability to work, frozen bank accounts, revoked Canadian passport by FRO, and expiring health insurance amidst the COVID-19 pandemic, exacerbated by pre-existing medical conditions.

The applicant opposed the urgency request.

The court dismissed the respondent's motion for an urgent hearing, finding his urgent situation largely self-made due to his own delays, non-compliance with previous court orders, and failure to seek appropriate relief or return to Canada when able.

The court also noted the potential issue of attornment to jurisdiction.

The court issued a second supplementary judgment addressing the applicant's request for a spousal rollover of an RRSP and the question of costs.

The court dismissed the spousal rollover request, finding it had been substantially complied with through payments into a joint account for shared expenses.

On costs, the respondent was deemed to have prevailed overall, having beaten his offers to settle.

The court awarded the respondent partial indemnity costs throughout and substantial indemnity costs from the date of his offer, with adjustments for the applicant's successful defense of a misconceived breach of fiduciary duty claim and shared costs for an expert income report.

The respondent sought costs of a motion to enforce compliance with a Final Order dated February 23, 2018.

The applicant, acting in person, did not respond to the respondent's costs submissions.

The court found that the respondent was successful in the motion and that the applicant behaved unreasonably by failing to comply with multiple provisions of the Final Order, including summer holiday provisions, communication requirements, parenting coordinator costs, school attendance, and disclosure obligations.

Although the applicant eventually cured most breaches after the motion was brought, the court determined that costs should be awarded on a partial recovery basis rather than full recovery, taking into account the applicant's limited financial circumstances and the absence of a formal settlement offer by the respondent.

The parties separated after a 10.5-year relationship.

The respondent, a high-earning cardiac surgeon, continued to deposit his income into a joint account managed by the applicant for seven years post-separation.

In 2008, the parties signed a separation agreement providing the applicant with $29,000 per month in indefinite spousal support.

The respondent sought to set aside the agreement and claim damages for breach of fiduciary duty regarding the applicant's use of the joint funds.

The court dismissed the fiduciary duty claim, finding no such duty existed between the spouses in these circumstances.

While the court upheld the separation agreement as valid under the Family Law Act, it applied the Miglin framework to override the spousal support provisions under the Divorce Act.

The court found the support quantum was based on significant tax defalcation and far exceeded the applicant's entitlement.

Spousal support was terminated after a short transition period.

Following a successful family law motion granting injunctive relief to prevent dissipation of assets, the moving party sought costs on a full recovery basis.

The court considered Rule 24 of the Family Law Rules and determined that the responding party had acted in bad faith by failing to provide proper financial disclosure, terminating support, and attempting to deal with jointly owned assets while international proceedings were ongoing.

Given the complexity of the litigation, the high financial stakes, and the conduct of the responding party, the court held that full indemnity costs were warranted.

The court ordered payment of substantial legal fees and disbursements to counsel for the moving party within 30 days.