Court File and Parties

Court File No.: FS-13-386031 Date: 2020-05-22 Ontario Superior Court of Justice

Between: Carmela Maria Capone, Applicant And: Zoran Fotak, Respondent

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

Heard: May 19, 2020

Endorsement

DIAMOND J.:

Overview

[1] On March 17, 2020, I was scheduled to hear two motions:

(a) a long motion brought by the respondent seeking an order setting aside ten separate orders made in this proceeding between April 17, 2013 - January 25, 2016 on the basis that the Ontario Superior Court of Justice lacked jurisdiction by reason that the respondent was never properly served with the applicant’s original materials in accordance with the provisions of Hague Service Convention; and,

(b) a cross-motion brought by the applicant seeking an order that the respondent be refused an audience by the Court on the grounds that he remains in breach of the said court orders, or in the alternative an order that the respondent post security for costs for his long motion.

[2] Those two motions were never argued, as pursuant to the Chief Justice’s Notice to the Profession dated March 15, 2020 (the “Notice”, subsequently updated on April 2, 2020 and then May 13, 2020), the regular operations of the Ontario Superior Court of Justice were suspended, and (at the time) only urgent family motions were permitted to be scheduled during the emergency period.

[3] On April 30, 2020, the respondent served and filed a Notice of Motion seeking an order permitting his long motion (and by extension the applicant’s cross-motion) to be heard on an expedited and urgent basis pursuant to the Notice.

[4] On May 4, 2020, Justice Shore released an Endorsement designating myself as the judge assigned to hear this matter. While the particulars of Justice Shore’s Endorsement are set out hereinafter, a telephone hearing was scheduled to take place before me on May 19, 2020.

[5] The telephone hearing proceeded as scheduled, and at the conclusion of the hearing I took my decision under reserve.

[6] I am not charged with making any findings of fact on the respondent’s long motion. That said, it is important to review some of the chronological history of this proceeding in order to appreciate the positions now taken by both parties.

[7] On April 17, 2013, Justice Czutrin heard the applicant’s ex parte motion seeking, inter alia, an order that the respondent preserve all his assets, and that the matrimonial home be listed for sale. Justice Czutrin granted the relief sought, and required the applicant to serve her Notice of Motion and supporting materials upon the respondent by FedEx or UPS courier at his New York City address. The applicant’s motion was adjourned to be heard on May 2, 2013.

[8] As previously stated, the respondent contends that he was never properly served with the applicant’s motion materials. The respondent did not attend on May 2, 2013, and Justice Czutrin dispensed with the respondent’s consent to the sale of the matrimonial home.

[9] On May 9, 2013, Justice Czutrin continued his non-depletion order against the respondent and found that the respondent was validly served via FedEx courier at his New York City address.

[10] Further orders were subsequently made in the respondent’s absence, including an order dated August 1, 2013 of Justice Croll (“the Croll Order”) requiring the respondent to pay various support to the applicant and the children of the marriage. Eventually, the respondent retained Ontario counsel and brought a motion to set aside and/or stay enforcement of his support obligations under the Croll Order. That motion was heard by Justice Mesbur on April 24, 2014. Justice Mesbur did grant a stay of enforcement of the Croll Order, but on specific terms requiring the respondent to pay specific child and spousal support going forward, along with instalments to pay off support arrears (the “Mesbur Order”).

[11] The respondent did not comply with the terms of the Mesbur Order, and the applicant brought a motion to strike the respondent’s pleadings. That motion was scheduled to be heard before Justice Horkins on October 9, 2014, but was adjourned at the respondent’s request to enable him to file responding materials.

[12] The applicant’s motion to strike was ultimately heard by Justice Paisley on October 21, 2014. The respondent attended that day, and Justice Paisley ordered the respondent’s pleadings to be struck in the event he failed to pay the support arrears and ongoing support obligations as per the terms of the Mesbur Order within a further 30 days.

[13] The respondent did not make those payments, and by order dated September 3, 2013 Justice Chiappetta struck out the respondent’s pleadings (the “Chiappetta Order”), which ultimately resulted in the final divorce order of Justice Paisley dated January 25, 2016.

The Respondent’s Long Motion

[14] On or about November 4, 2019 (nearly four years after Justice Paisley’s final divorce order), the respondent served and filed his long motion seeking an order setting aside all ten orders made in this proceeding on the basis of lack of jurisdiction.

[15] The respondent subsequently sought an order dispensing with the requirement for the parties to participate in a case conference on the basis of urgency. In support of his request, the respondent gave evidence that his default of the ten (allegedly improper) court orders adversely impacted his ability to earn income and financial resources, resulting in his Canadian passport being revoked by the Family Responsibility Office (“FRO”). The respondent argued that he could not obtain a U.S. work Visa until his outstanding U.S. federal taxes were paid, and since he had no access to credit and his Canadian bank accounts remained frozen, his long motion needed to be heard as soon as possible.

[16] By order dated February 28, 2020, Justice Nakonechny rejected the respondent’s arguments, and dismissed his request. The parties were ordered to participate in a case conference in advance of the hearing of the respondent’s long motion (which, together with the applicant’s cross-motion, was scheduled to be argued before me on March 17, 2020).

[17] On March 9, 2020, a case conference proceeded before Justice Shore. Nothing was resolved.

The Evidence of Urgency

[18] In support of his current motion, the respondent swore an affidavit dated April 30, 2020 stating that in the absence of a finding of urgency, he is faced with a “time-sensitive, life-threatening situation” in the middle of the COVID-19 pandemic. The respondent gave evidence that he has pre-existing medical conditions of high blood pressure and heart disease, and is a colon cancer survivor.

[19] The respondent claims to be stranded in the U.S. without his Canadian passport (again, seized by FRO through enforcement efforts) and without a U.S. Visa as (a) he ceased to be a resident of the United States at the end of 2013, and (b) his H1B U.S. Visa expired on August 31, 2014.

[20] The respondent submits that he is an undocumented immigrant, and thus unable to apply for private medical insurance himself. The respondent’s companion, Monica Roquitte (“Monica”) also swore an affidavit, and testified that since June 2013 the respondent has been living with her in Jersey City, New Jersey. While the respondent’s official residence is technically Bermuda, according to Monica he has effectively been stranded in U.S. since the fall of 2016 when FRO seized his Canadian passport.

[21] In 2016, the respondent was covered under Monica’s health insurance policy with her employer, as the respondent was a member of her household and her domestic partner. Monica left her employer in January 2019. Monica gave evidence (which transcended into opinion evidence) that U.S. law requires employers to maintain existing health insurance for their employees for an additional 18 months after they leave employment. As such, the respondent has health insurance coverage through Monica’s employer until July 31, 2020.

[22] Monica testified (again, opinion evidence) that the U.S. government will not permit her to cover the respondent as a member of her household because they are not married and the respondent no longer qualifies as a government registered domestic partner for health insurance purposes because he is not a legal resident and does not hold a valid U.S. Visa. According to Monica, Americans who are unemployed, self-employed or whose employer does not offer a health insurance plan must purchase health insurance through the government regulated ACA Health Insurance Exchange, which is only accessible to citizens and lawfully present immigrants. The respondent is apparently neither, as he cannot obtain a valid U.S. Visa without his Canadian passport.

[23] The respondent testified that in the midst of the COVID-19 pandemic, he now faces a “new” life and death urgency due to his pre-existing conditions and inability to obtain health insurance coverage. As such, the respondent submits that his long motion fits the urgency requirement as defined by the Notice and subsequent jurisprudence.

Should the Respondent’s Motion be Scheduled as Urgent?

[24] To begin, the respondent submits that since Justice Shore made a presumptive finding of urgency, this Court should follow the reasoning set out in Wang v. 2426483 Ontario Limited, 2020 ONSC 2040, and in particular the following passages:

“The Notice to the Profession provides guidelines for those who nevertheless need to access the courts while they are not in full operation. People needed to be told the kinds of matters that could be accommodated, the types of materials that they should file, and the email addresses to contact to reach court personnel. This is all important information for the purposes of explaining to the public and the legal profession the processes put in place to maintain operations by the extraordinary efforts of the Superior Court of Justice.

However, none of this affects the court’s jurisdiction or the applicable rules of law. All court proceedings continue although only a very few are being scheduled for hearing at this time. Scheduling is an administrative function of the court. Normally, in the civil division in Toronto, hearings are scheduled by administrators over the telephone or by email and by judges in Civil Practice Court. Many factors go into scheduling that are not the subject of discussion with or among the litigants. The availability of judges for the type of hearing proposed, the availability of courtrooms, of staff, and numerous other administrative inputs may be brought to bear.

Counsel may be invited to make submissions on the timing of a proposed hearing including whether there is a degree of urgency. Or not.

But it is not a legal determination. There is no need or call for detailed submissions. There is no need for submissions on the merits of the proposed proceeding before and certainly not after the scheduling determination has been made.

The court has very limited access to staff with full computer capabilities at present. Much back and forth about urgency, the merits, and parsing of the terms of the Notice of Profession are literally clogging up the Motion Coordinator’s email. This is not required. In the main it is not helpful. And it must stop.

The court has jurisdiction to schedule and hear a proceeding that is brought before it. If a matter appears to be one that should be scheduled, a case conference is frequently convened. In that way, the presiding judge can quickly contact the parties and determine an appropriate schedule for the exchange of materials and hearing, if any.

Submissions on the merits and emails arguing back and forth among counsel about urgency should not be sent to the court unless invited. Once a civil proceeding is booked in Toronto under the Notice to the Profession, there is no basis for further submissions to be delivered on the issue of urgency. Nor is the issue before the motion judge. Parties are always free to seek adjournments and appropriate scheduling terms before a judge presiding at a hearing. But they do not challenge the scheduling of the hearing itself. The court’s administrative process is not part of the lis or the dispute between the parties.

It is not the intention of the Notice to the Profession that hearings will become bogged down by arguments over the applicability of its terms. It is not a new front for parties to battle. Once a hearing is scheduled by the triage judge(s) the Notice to the Profession is spent and the presiding judge will deal with the parties in the manner she or he determines is appropriate.”

[25] In my view, the reasoning in Wang is not instructive or applicable here. In her Endorsement, Justice Shore did not make a finding that the respondent’s motion was presumptively urgent. On the contrary, while Justice Shore acknowledged the respondent’s position that the matter is urgent, she explicitly held as follows (my emphasis in bold):

“It is difficult on the materials filed to determine whether this matter is urgent. This is not a straightforward motion. The Respondent only filed minimal materials before this court to determine the issue of urgency. He did not include his primary notice of motion or other relevant materials. Despite paragraph B.4. of the Notice to the Profession, dated March 15, 2020, and B.2.5. of the Notice to the Profession dated April 2, 2020, the Respondent failed to file the “prior orders or endorsements that were issued that are relevant to the urgent matter”. Both Justice Nakonechny and I have issued endorsements in this matter, none of which were filed with the Respondent’s materials.

However, given the seriousness of the claims, on a presumptive basis the matter may be urgent, and I will assign a judge to hear the matter. However, as set out in the Notice to the Profession, the designated judge still has jurisdiction to determine whether the matter is urgent and should proceed (or not) to be heard.”

[26] Accordingly, I do not find that Justice Shore’s Endorsement binds or forces me to schedule the respondent’s motion as urgent.

[27] I have reviewed all of the evidence tendered by the parties, both filed on the original long motion and cross-motion, and filed since April 30, 2020 in advance of and in preparation for the telephone hearing.

[28] For the following reasons, I decline to schedule the respondent’s long motion:

• Despite the respondent’s submissions to the contrary, I find that to the extent that he finds himself in an urgent situation, much of that situation was self-made. I make this finding for several reasons: a) according to the respondent, his H1B U.S. Visa expired on August 31, 2014, at a time when his Canadian passport was yet to be suspended by FRO. There is no evidence explaining why he did not return to Canada and/or re-apply for an H1B U.S. Visa at that time. A successful application to renew his H1B U.S. Visa in 2014 would likely have permitted him to seek additional health insurance coverage, which is now the primary basis for his request to find urgency; b) Monica gave (opinion) evidence that even if the respondent were able to return to Canada, he would be subject to a six-month waiting period before he could qualify for OHIP coverage. The respondent was or ought to have been aware in January 2019 that his health insurance through Monica’s holdover coverage would expire by July 31, 2020. He did not serve his long motion materials until early November 2019, i.e. approximately nine months later. There is no substantive evidence explaining why he took no steps to serve his motion for nine months, or attempt to return to Canada; and, c) the respondent did not provide FRO with notice of his long motion, nor did he seek any relief against FRO, including but not limited to a refraining order.

• While the respondent submits that this Court lacked jurisdiction to make all the ten impugned orders in this proceeding, in the absence of the respondent obtaining a stay, all of those orders are still valid, existing and in full force and effect. The respondent, who previously sought and obtained a stay of the Croll Order (and thus is aware of the necessity of obtaining such a stay), chose not to seek a stay of the ten orders and failed to explain the reasons for this omission in his motion materials.

• As those ten orders are in full force and effect, the respondent remains in significant breach of all of them. Even when the Mesbur Order afforded the respondent an opportunity to set aside the orders in this proceeding, albeit on terms, the respondent chose not to comply with those terms, and remained in breach of those and subsequent orders. There is obviously an inherent, assumed risk in taking such a position. There is ample jurisprudence supporting the applicant’s position that the Court ought not to grant a party an audience where that party has consistently failed to comply with court orders. It simply cannot lie in the respondent’s mouth to claim urgency at this late stage when he previously sought, obtained, and then squandered the opportunity to gain an audience with this Court.

• The respondent previously sought to schedule his long motion on an urgent basis, and Justice Nakonechny dismissed his request to dispense with the requirement to first participate in a case conference. On my review of the records before both Justice Nakonechny and this Court, other than the onset of the COVID-19 pandemic and the suspension of court operations, there are really no substantively different or additional facts raised by the respondent. His health issues, the expiry of his H1B U.S. Visa, the FRO suspension of his passport, and the pending expiry of his health insurance were all either known to the respondent, or placed front and center before Justice Nakonechny and this Court. While I appreciate that the test for urgency under the developing COVID-19 jurisprudence is slightly different than the test set out in the jurisprudence relied upon by Justice Nakonechny, the traditional principles set out in Rosen v. Rosen remain relevant and instructive to both assessments.

• While I do not intend to bind the hands of the judge who ultimately hears the respondent’s long motion, this is not the first time that the respondent has sought to set aside court orders made in his absence. While the applicant may seek to rely upon the doctrine of issue estoppel (which may or may not prove successful), the fact that the respondent served and filed a pleading (as evidenced by the applicant’s motion to strike that pleading and the Chiappetta Order granting that relief), coupled with the respondent taking substantive steps on the merits in this proceeding to set aside orders on the basis that the applicant allegedly misled the court, lead to a concern that the respondent has attorned to the jurisdiction of Ontario, thereby rendering his argument that this Court originally lacked jurisdiction to be potentially moot. Again, this is an issue to be determined by the judge hearing the respondent’s long motion, and that issue is obviously still live. However, as held by the Court of Appeal for Ontario in Di Gregorio v. Sunwing Vacations Inc., 2018 ONCA 655, a substantive step made by a party in an Ontario proceeding (such as the filing of a defence) results in that party attorning to the jurisdiction of Ontario.

[29] Nothing in this Endorsement precludes the respondent from seeking to reschedule his motion when regular court operations resume.

Costs

[30] If the parties are unable to agree on the costs of this motion, they may serve and file written costs submissions (totalling no more than five pages including a Costs Outline) in accordance with the following schedule:

(a) the applicant’s costs submissions shall be served and filed within ten (10) business days of the release of this Endorsement; and,

(b) the respondent shall thereafter have an additional ten (10) business days from the receipt of the applicant’s costs submissions to serve and file his responding costs submissions.

Diamond J.

Released: May 22, 2020