Court of Appeal for Ontario
Date: 2022-05-31 Docket: C70124 & M53395
Before: Strathy C.J.O., Sossin and Favreau JJ.A.
Docket: C70124
Between: Carmela Maria Capone Applicant (Respondent)
And: Zoran Fotak Respondent (Appellant)
Docket: M53395
And Between: Carmela Maria Capone Applicant (Responding Party)
And: Zoran Fotak Respondent (Moving Party)
Counsel: Zoran Fotak, acting in person Harold Niman and Jen-Yii Liew, for the respondent (C70124) / responding party (M53395)
Heard: May 19, 2022
On appeal from the order of Justice Sharon Shore of the Superior Court of Justice, dated December 10, 2021, with reasons reported at 2021 ONSC 7992.
Reasons for Decision
[1] The appellant, Zoran Fotak, appeals from a decision of the motion judge dismissing a motion to stay a total of ten previous court orders in his family law dispute with the respondent, Carmela Maria Capone, in proceedings that have been ongoing since 2013. Ms. Capone alleges that Mr. Fotak is in breach of provisions in those ten previous orders. Mr. Fotak also brings a motion to “quash” the decision of a case management judge, which found that Ms. Capone’s responding materials in this appeal were properly and timely served.
[2] Mr. Fotak submits the court lacked jurisdiction to make the ten previous orders, as the originating materials in 2013 were not served on him in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, 658 U.N.T.S. 163, Can. T.S. 1989 No. 2 (entered into force 10 February 1969, accession by Canada 1 May 1989) (“the Convention”).
[3] In the course of addressing the motion for a stay, the motion judge concluded it was necessary to determine whether the court had jurisdiction under the Convention. The motion judge confirmed that jurisdiction is not an issue between parties but rather an issue for the court.
[4] When the proceedings commenced in 2013, Ms. Capone was living in Ontario, while Mr. Fotak was living in New York. Mr. Fotak was served via FedEx delivered to his home address in New York. Mr. Fotak argues he never received these documents via FedEx.
[5] The motion judge found that the Convention applied with respect to the service of documents outside of Canada, pursuant to r. 17.05(3)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Further, the motion judge found Mr. Fotak was properly served under the Convention. The motion judge explained that service by postal channels between Canada and the United States is permitted under Article 10 of the Convention, as the United States has not objected to postal service, so long as it is a lawful means of service in Ontario. The motion judge further held that postal channel includes sending the documents by mail or private couriers, which includes FedEx. The motion judge found that the service of Mr. Fotak in 2013 complied with the laws of Ontario, and thus with the Convention.
[6] The motion judge found the service complied with r. 6 of the Family Law Rules, O. Reg. 114/99, as there was a court order permitting service by an alternative to personal service prior to the service taking place. Rule 6(1) provides: “Service of a document under these rules may be carried out by regular service or by special service in accordance with this rule, unless an Act, rule or order provides otherwise.” Rule 6(15) provides that the court may order substituted service, if the moving party provides evidence showing what steps have been taken to locate the person and serve the document, and that the method of service could reasonably be expected to bring the document to the person’s attention. Rule 6(15.1) provides that an order may be obtained on motion without notice, except where the person to be served is a government agency. The motion judge referenced an order of Czutrin J., authorizing substituted service by FedEx or UPS courier to Mr. Fotak’s address in New York, following an ex parte motion heard on April 17, 2013, prior to Ms. Capone serving Mr. Fotak through FedEx. Czutrin J. made a further order validating service on May 9, 2013, after Ms. Capone advised Czutrin J. that Mr. Fotak was challenging service.
[7] On this basis, the motion judge dismissed Mr. Fotak’s argument that the court lacked jurisdiction.
[8] Mr. Fotak also argued that the motion judge should set aside his being noted in default based on incomplete disclosure.
[9] The motion judge rejected this argument, stating: The time for moving to set aside an order made on an ex parte basis due to lack of full and frank disclosure has long since passed. The Respondent participated in numerous court attendances following the ex parte order of Justice Czutrin in 2013. Further, In April 2014, in a motion before Justice Mesbur, the Respondent specifically argued that the prior orders should be stayed or set aside on the basis that the ex parte orders were obtained by fraud and that [the] Applicant failed to make full and complete disclosure to the court. This issue has already been argued before the Court. A final order was made in January 2016. The Respondent did not move to set aside the orders and did not appeal the orders. He took no steps for almost four years, until the fall of 2019 when he brought this motion to set aside all prior orders for lack of jurisdiction by the court.
[10] The motion judge proceeded to apply the three-part test for a stay set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. The motion judge found Mr. Fotak’s challenge to the court’s jurisdiction lacked merit for the reasons set out above. She also found no irreparable harm to Mr. Fotak, as any financial harm caused by not staying the continuing interim orders could be remedied by a final order. Further, she found that Mr. Fotak was the cause of his own situation in failing to comply with the continuing court orders. Finally, she found that a balance of convenience favoured refusing to grant the stay, as staying the orders would create chaos for the parties and a dire financial situation for the respondent.
[11] A judge’s decision to grant or decline to grant a stay is discretionary and is entitled to deference. Discretionary decisions attract a high level of deference on appeal. Appellate courts will only intervene where there is a clearly identifiable legal error, a material misapprehension of the relevant evidence, or a result that is clearly wrong in the sense that it is not defensible on the relevant law and facts: Popack v. Lipszyc, 2016 ONCA 135, 129 O.R. (3d) 321, at para. 25.
[12] We see no error with respect to the motion judge’s analysis of jurisdiction which would warrant appellate intervention.
[13] Additionally, it is clear that Mr. Fotak has attorned to the jurisdiction of Ontario’s courts by his participation in the proceedings, at least from April 2014 when he served his Answer and Claim for divorce, decision-making responsibility and equalization of net family properties, and a Notice of Motion supported by affidavits and a financial statement.
[14] Attornment refers to the situation where a party has, through its actions, agreed to submit to the jurisdiction of the court. Under r. 16.01(2) and r. 17.06(1) of the Rules of Civil Procedure, a party who files a Notice of Intent to Defend is then estopped from asserting that the service should be set aside. When, as here, a party waives any potential defect in service by its conduct in attorning to the jurisdiction or in not moving to set aside service under r. 17.06 before filing a Notice of Intent to Defend, it may not later claim the proceeding is a nullity because it was not served in accordance with the strict requirements of the Convention: Wilson v. Servier Canada Inc., 50 O.R. (3d) 219 (S.C.), at para. 43, leave to appeal to Ont. Div. Ct. refused, , 52 O.R. (3d) 20 (Div. Ct.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 88 (S.C.C.).
[15] We also see no basis to interfere with the motion judge’s discretionary decision to refuse to grant the requested stay of the court orders.
[16] Mr. Fotak also brought a motion to “quash” the decision of a case management judge, which found that Ms. Capone’s responding materials were properly and timely served. The case management judge found that Ms. Capone’s materials for this appeal were properly and timely served by email, as they were not an originating process and this court’s Consolidated Practice Direction Regarding Proceedings in the Court of Appeal During the COVID-19 Pandemic, at paras. 37-38, permits electronic service. We see no error in the case management judge’s decision.
Disposition
[17] For these reasons, the appeal and the motion are dismissed, with costs to the respondent.
[18] If the parties cannot agree on costs, they may make written submissions, limited to three pages, excluding the costs outline, within 14 days of the release of this decision.
