Court File and Parties
CITATION: Arconti v. Fousek et al. 2017 ONSC 5238
COURT FILE NO.: CV-17-573493-0000
DATE: 20170905
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
LUIGINO ARCONTI, Plaintiff
- and -
LENKA FOUSEK, MATT LAMB, PAUL FOUSEK JR., PAUL FOUSEK SR. EVA FOUSEK, Defendants
BEFORE: J.F. Diamond J.
READ: September 1, 2017
ENDORSEMENT
[1] This action was referred to me by the registrar’s office pursuant to Rule 2.1.01(7) following receipt of a written request under Rule 2.1.01(6) by the defendants.
[2] While no submissions from the requesting defendants are typically permitted, the defendants argue that since the plaintiff is requesting, inter alia, the determination of his entitlement to marital assets acquired during his marriage to the defendant Lenka Fousek (presumably in accordance with section 5of the Family Law Act R.S.O. 1990 c. F3) section 21.8(1) of the Courts of Justice Act R.S.O. 1990 c. C43) thus mandate this proceeding to fall within the exclusive jurisdiction of the Family Law Court.
[3] In the plaintiff’s Statement of Claim, he asserts various causes of action against the named defendants, including fraud, breach of contract, unjust enrichment and conspiracy. However, the underlying factual matrix which substantiates all of those causes of action is a failure on the part of some or all of the defendants to account for certain marital assets which, according to the plaintiff, were to be stored and maintained for the benefit of him and his estranged wife “to be divided up between them through their eventual divorce proceedings.” The plaintiff alleges that after the matrimonial home was sold, the marital assets were sold and/or given to the remaining (ie non-Lenka) defendants.
[4] This proceeding is somewhat odd as it actually contemplates the commencement of a divorce (ie, family law) proceeding between the plaintiff and Lenka, but seeks damages for various civil causes of action arising out of an alleged agreement to maintain the martial assets pending the determination of that divorce proceeding. The plaintiff is not expressly asking for relief under the Family Law Act, but in claiming damages he is impliedly alleging that the value of his share of the marital assets is at least $160,000.00. That assessment cannot possibly be made without recourse to a proper equalization claim disposition in a family law proceeding.
[5] That said, the claims against the remaining defendants are likely not factually premised upon any findings to be made in a family law proceeding, other than the valuation of potential damages if those claims succeed. The claims against the remaining defendants arguably exist independently from those against Lenka, although the plaintiff does allege a conspiracy among all defendants to defraud the plaintiff of his share of the marital assets by disposing and/or converting those assets.
[6] As held by Justice Myers in Raji v. Border Ladner Gervais LLP, 2015 ONSC 801:
“Rule 2.1 is not for close calls. Its availability is predicated on the abusive nature of the proceeding being apparent on the face of the pleadings themselves. No evidence is submitted on the motion…. [T]here are two conditions generally required for Rule 2.1 to be applied. First, the frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the pleading as required by the rule. Second, there should generally be a basis in the pleadings to support the resort to the attenuated process of Rule 2.1…. This second requirement is not in the rule and is not a fixed requirement. It strikes me as a guideline that reminds the court that there are other rules available for the same subject matter and that resort to the attenuated process in Rule 2.1 should be justified in each case.
[7] At this stage, I believe that the proper course of action would be for the defendants to bring a formal motion, which would either request that this proceeding be transferred to the Family Court list (with the remaining defendants potentially being added as parties pursuant to section 7(5) of the Family Law Rules), or seek a consolidation of this proceeding with a family law proceeding to be presumably commenced by the plaintiff or Lemka. While I agree that this proceeding cannot proceed on its own, I do not believe that Rule 2