Court File and Parties

CITATION: Agha v. Fatima, 2025 ONSC 5675

DIVISIONAL COURT FILE NO.: 300/25

DATE: 2025-10-06

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Muhammad Akhtar Agha, Appellant

AND: Zohra Fatima, Respondent

BEFORE: Justice O’Brien

COUNSEL: Appellant, Self-Represented Viktoriya Terentyeva, counsel for the Respondent

HEARD: In-writing

Endorsement

[1] This endorsement provides my reasons for dismissing this appeal pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The appellant husband seeks to appeal the December 17, 2024 order of Kraft J. following a family law trial. The trial addressed a range of issues, including child support, spousal support, whether an equalization payment was owing, post-separation adjustments, whether the husband’s interest in the matrimonial home should be transferred or vested in the wife’s name, and whether to make a restraining order against the husband. Kraft J.’s order was made in the context of a divorce application. She expressly made her support orders under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[3] During the case management process, the court issued directions raising the concern that the court did not have jurisdiction over the appeal and, therefore, that the appeal was frivolous, vexatious, or an abuse of process of the court. The court asked the Registrar to issue a notice under r. 2.1. The case management directions, which were provided to the parties with the r. 2.1 notice, asked the appellant to address the following concerns in his r. 2.1 submissions:

a. The Divisional Court does not appear to have jurisdiction to hear the appeal.

b. The proposed appellant relies on s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (CJA). That provision addresses interlocutory orders. This is an appeal from a final order.

c. Paragraph 19(1)(a.1) of the CJA addresses appeals to the Divisional Court from a final order of a judge of the Family Court made only under a provision of an Act or regulation in Ontario. Kraft J. is not a judge of the Family Court. In addition, the order was made pursuant to an application under the Divorce Act and includes relief only available in the context of a divorce proceeding, such as for the equalization of property.

d. Although the proposed appellant cites s. 110 of the CJA, he does so saying that jurisdiction lies in the Divisional Court pursuant to s. 110. He does not seek a transfer to a different court under that provision. Section 110 does not provide a source of jurisdiction to this court.

[4] The court’s directions also advised the appellant that it remained open to him to bring a motion under s. 110 of the CJA. The directions stated:

It also remains open to the appellant to bring a motion under s. 110 of the Courts of Justice Act seeking a transfer of his appeal to the Court of Appeal. The test for a transfer includes the following considerations:

a. The merits of the appeal;

b. Whether the respondent will suffer undue prejudice while the appeal is waiting to be heard; and

c. Whether the appellant moved expeditiously once it was known jurisdiction was being disputed.

[5] The appellant filed responding submissions in which he argues that his appeal is not frivolous, vexatious or an abuse of process because it raises serious issues of law, jurisdiction and procedural fairness. He highlights that the appeal involves orders of spousal support, child support and property interests that he says were decided without procedural fairness.

[6] The appellant also submits the Divisional Court has jurisdiction over appeals from final orders of the Superior Court of Justice under s. 19(1)(b) of the CJA and over interlocutory orders under s. 19(1)(a.1) of the CJA. I note he cites the wrong subsection for interlocutory orders. It is s. 19(1)(b) of the CJA.

[7] For the following reasons, I find the appeal should be dismissed.

[8] Rule 2.1.01 allows the court to stay or dismiss a proceeding where it appears on its face to be frivolous, vexatious, or otherwise an abuse of the process of the court. The application of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, [2015] O.J. No. 5692, at para. 8; Mohammad v. McMaster University, 2023 ONCA 598, [2023] O.J. No. 3997, at para. 6.

[9] The rule “must be interpreted robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process”: Scaduto, at para. 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8.

[10] In this case, it is evident that the court does not have jurisdiction over the appeal. The appellant relies on s. 19(1)(a) of the CJA, which states that an appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2). Only subsection (1.2) could apply here, because the notice of appeal was filed after October 1, 2007. Subsection (1.2) limits the court’s jurisdiction to appeals from final orders for a single payment of not more than $50,000 or periodic payments of not more than $50,000. The payments Kraft J. ordered total more than $50,000.

[11] The appellant has also cited s. 19(1)(a.1) of the CJA, although he says this provision grants jurisdiction over appeals from interlocutory orders. Paragraph 19(1)(a.1) states an appeal lies to the Divisional Court from a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario. This provision does not apply because Kraft J. is not a judge of the Family Court. Kraft J. sits, and the trial was heard, in Toronto. Under s. 21.1(5) of the CJA, Toronto is not an area in which the Family Court has jurisdiction. In addition, Kraft J.’s order was made under the Divorce Act, which is a federal statute. Her order therefore does not comply with the requirement in s. 19(1)(a.1) that it be made only under a provision of an act or regulation of Ontario.

[12] To the extent the appellant intended to rely on s. 19(1)(b) of the CJA, that provision does not apply because it grants the Divisional Court jurisdiction over appeals from interlocutory orders, with leave. Kraft J.’s order was not interlocutory.

[13] The appellant’s submission that his appeal is not otherwise frivolous, vexatious, or an abuse of process does not address the crux of the court’s concerns. The court is only concerned that the appeal should be dismissed under r. 2.1 because of an absence of jurisdiction; it does not raise r. 2.1 because of a concern, for example, about the appellant’s conduct.

[14] The appellant’s submission that his appeal focuses on procedural unfairness does not assist. The court’s jurisdiction is determined by the nature of the underlying order and whether the CJA grants jurisdiction to the Divisional Court to determine an appeal from that order. It does not depend on the arguments raised on appeal.

[15] Because the court plainly does not have jurisdiction over the appeal, the appeal is doomed to fail.

[16] In an email sent to the court after providing his responding r. 2.1 submissions, the appellant referred to s. 110 of the CJA. He stated that s.110 empowers the Divisional Court to transfer proceedings to another court where appropriate and that it may do so without a formal motion.

[17] While the court may exercise its discretion to transfer a matter to another court under s. 110 without a motion, in this case, the court’s previous directions had suggested a motion would be needed. In addition, in the previous directions, the court expressly set out the factors the court would need to consider in determining whether to transfer a matter under s. 110. The appellant did not bring a motion nor address any of the factors under the s. 110 test. The court therefore declines to order a transfer under that provision. This does not prevent the appellant from initiating an appeal at the Court of Appeal, but he will need to seek an extension of time to do so.

[18] The appeal is dismissed pursuant to r. 2.1.01.

O’Brien J

Date: October 6, 2025