Court File and Parties

Citation: Sabijan v. Sabijan, 2021 ONSC 6635 Divisional Court File No.: 811/21 Date: 2021-10-05 Superior Court of Justice – Ontario Divisional Court

Re: Devorra Sabijan, Applicant / Responding Party And: Kreso Sabijan, Respondent / Moving Party

Before: Favreau J.

Counsel: Kreso Sabijan – the Moving Party, representing himself Heather R. Caron – for the Responding Party

Notice Under Rule 2.1.01 of the Rules

[1] Kreso Sabijan seeks to bring a motion for leave to appeal an order made by Breithaupt Smith J. on September 1, 2021. In her order, the motion judge adjourned a hearing sine die pending the determination of an appeal currently scheduled before this Court.

[2] Rule 2.1.02 of the Rules of Civil Procedure provides that the court may dismiss a motion that appears on its face to be frivolous, vexatious, or an abuse of the process of the court.

[3] The court is considering whether to dismiss this motion for leave to appeal on the basis of Rule 2.1.02 based on the following considerations:

a. Mr. Sabijan has a pending appeal before this Court from a previous order of the Superior Court striking his answer in the family law matter adjourned sine die by the motion judge. The order of September 1, 2021 from which he now seeks leave to appeal appears to be nothing more than an order deferring the hearing of the substance of this family law dispute to a later date after this Court decides whether Mr. Sabijan’s answer should have been struck. The order appears to have been made for Mr. Sabijan’s benefit, in the event he is successful on the appeal pending before this Court.

b. The notice of motion for leave to appeal does not appear to state any coherent grounds in support of granting leave to appeal. For example, in his notice, Mr. Sabijan states that he is “at the mercy of the Honorable Court and respectfully pleads your Honorable Court to provide the doctrine of Amicus Curiae”. He also states: “Kreso, is required to plead for a motion of leave to appeal on a new matter of an order that has been made in the lower court of Kitchener Superior Court of Justice, Family Division on Sep 1, 2021, that is partly dependant on two undetermined decisions currently pending in the Divisional court under File No. 515-21. Therefore, Kreso must respond to this order and it potential wounds that may prejudice appellants position.”

c. The notice of motion for leave to appeal appears to seek relief that would not be available on a motion for leave to appeal and that is irrelevant to the issue of whether the motion judge should have granted the adjournment sine die. For example, he seeks costs of various other proceedings and an order that the judge who made the original order striking his answer not hear the case on the merits.

d. There is no indication in the notice of motion for leave to appeal of the grounds on which Mr. Sabijan claims the motion judge erred in making the order or how this motion for leave to appeal meets the test for leave under Rule 62.02(4) of the Rules of Civil Procedure.

[4] However, Mr. Sabijan should be given an opportunity to explain why his motion for leave to appeal should not be dismissed as frivolous, vexatious and an abuse of process.

[5] Accordingly, the court makes the following order:

a. Pursuant to Rule 2.1.01(3)(1), the registrar is directed to give notice to Mr. Sabijan in Form 2.1A that the court is considering making an order under rule 2.1.01 dismissing his application;

b. If Mr. Sabijan chooses to make written submissions in response to the notice in accordance with Rule 2.1.01(3)2, his written submissions should address the apparent deficiencies identified above;

c. Pending the outcome of the written hearing under Rule 2.1 or further order of the court, the motion for leave to appeal is stayed pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, c C.43;

d. The registrar shall accept no further filings on the motion for leave to appeal except for Mr. Sabijan’s written submissions delivered in accordance with rule 2.1.01(3); and

e. In addition to the service by mail required by Rule 2.1.01(4), the registrar is to send a copy of this endorsement and a Form 2.1A notice to Mr. Sabijan and counsel for the Responding Party listed above by email.

Favreau J.

Date: October 5, 2021