Court File and Parties

Court of Appeal for Ontario Date: 20210305 Docket: M52116 (C68624)

Fairburn A.C.J.O., Miller and Zarnett JJ.A.

Between

Carmela Maria Capone Applicant (Respondent)

and

Zoran Fotak Respondent (Appellant)

Counsel: Harold Niman and Jen-Yii Liew, for the applicant Gary S. Joseph, Brian Moher, and Vivian Li, for the respondent

Heard and released orally: March 3, 2021 by video conference

On appeal from the orders of Diamond J. of the Superior Court of Justice, dated September 4, 2020 and October 15, 2020 with reasons reported at 2020 ONSC 5278.

Reasons for Decision

[1] The applicant, Carmela Maria Capone, moves to quash the appeal of the respondent, Zoran Fotak, from orders dated September 4 and October 15, 2020, made in family law proceedings that have been ongoing since 2013.

[2] Over the course of the proceedings, numerous orders have been made. Ms. Capone alleges that Mr. Fotak is in breach of provisions of ten of those orders.

[3] Mr. Fotak brought a motion, most recently amended in August 2020, to challenge the jurisdiction of the Superior Court. Ms. Capone brought a cross-motion that Mr. Fotak’s motion not be heard because he was in violation of court orders.

[4] On September 4, 2020, the motion judge ordered that Mr. Fotak would have the opportunity to move for a stay of the ten court orders and that if he was successful on the stay motion, he would be permitted to proceed with his jurisdictional challenge.

[5] On October 15, 2020, after a case conference held to settle the September 4, 2020 order, the motion judge clarified that he had not rendered a decision on the merits of the jurisdictional challenge and had not dismissed it. He had simply ordered that Mr. Fotak bring a stay motion as a condition of his jurisdictional challenge being heard. He specifically stated that he had made no determination of the effect, on the jurisdictional challenge, of any dismissal of the stay motion.

[6] The orders of the motion judge are interlocutory, and no appeal lies from them to this court. They do not determine any substantive claim or defence: see Hendrickson v. Kallio, [1932] O.R. 675 (C.A.). They do not determine, one way or the other, the jurisdictional challenge and therefore are not final orders within the meaning of Hopkins v. Kay, 2014 ONCA 514.

[7] The appeal is therefore quashed.

[8] As agreed to by the parties, Mr. Fotak shall pay costs to Ms. Capone in the sum of $10,000, inclusive of disbursements and applicable taxes.

“Fairburn A.C.J.O.”

“B.W. Miller J.A.”

“B. Zarnett J.A.”