Capone v Fotak 2020 ONSC 5278

COURT FILE NO.: FS-13-386031

DATE: 20200904

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CARMELA MARIA CAPONE

Applicant

– and –

ZORAN FOTAK

Respondent

Harold Niman and Jen-Yii Liew lawyers for the applicant

Gary S. Joseph, Brian Moher and Vivian Li lawyers for the respondent

HEARD: September 1, 2020

ENDORSEMENT

DIAMOND J.:

Overview

1Both parties originally brought motions that I was scheduled to hear on March 17, 2020.

2The respondent’s long motion (which has since been amended) sought an order setting aside ten separate orders (“the impugned orders”) made in this proceeding between April 17, 2013 - January 25, 2016 on the basis that (a) a want of jurisdiction on the part of the Ontario Superior Court of Justice (‘the Court”) due to the respondent allegedly not being served with the applicant’s original materials in accordance with the provisions of the Hague Service Convention, or (b) alternatively, the impugned orders were obtained by fraud on the part of the applicant, and to allow them to continue to be enforced would amount to a miscarriage of justice.

3The applicant brought a cross-motion seeking (a) an order that the respondent be refused an audience by the Court on the grounds that he remains in breach of the impugned orders, or (b) alternatively, an order that the respondent post security for costs for his long motion.

4The suspension of the regular operations of the Court precluded those two motions from being argued. By subsequent Endorsement dated May 22, 2020, I dismissed the respondent’s request to have his long motion rescheduled on the basis of alleged urgency.

5Upon the resumption of the Court’s regular operations, Justice Shore released an Endorsement dated July 6, 2020 rescheduling the respondent’s long motion to be heard before me for a half-day hearing on September 1, 2020.

6Subsequent to the release of Justice Shore’s Endorsement, the applicant sought to schedule her cross-motion on an urgent basis. By Endorsement dated August 12, 2020, Justice Shore refused to schedule the applicant’s motion, but held as follows:

“Is the applicant’s motion urgent? No. There is nothing urgent about the motion. However, the motion should be decided prior to the long motion. These parties have taken up considerable court time with their various motions and attendances (not all have been included in brief summary above).

7As such, on September 1, 2020 I heard the applicant’s cross-motion. At the conclusion of the half-day hearing, I took my decision under reserve.

Denying a litigant an audience

8In Dickie v. Dickie 2007 SCC 8, [2007] 1 S.C.R. 346, the Supreme Court of Canada adopted the dissenting reasons of Justice Laskin of the Court of Appeal for Ontario (reported at 2006 CanLII 576), and discussed the Court’s obvious discretion to refuse to hear a litigant who has not cured a wilful breach of a court order, especially when that litigant seeks to appeal, vary or set aside the very order being wilfully breached.

9Where a litigant wilfully and continuously “thumbs his/her nose at the Court”, the Court ought to exercise its discretion to refuse to hear the litigant in the absence of curing his/her wilful breach(es). In deciding whether to exercise that discretion accordingly, the Court should consider whether hearing the litigant before the breach is cured would abuse the Court’s process or impede the course of justice. In his dissent, Justice Laskin explicitly held (my emphasis in bold):

“The statement that the general rule that a court will not hear a litigant who has wilfully breached a court order until the litigant has cured the breach is subject to an exception where the litigant seeks to attack the jurisdiction of the court below to make the contempt order is not supported by principle or precedent.”

10In A.A. v. C.G. 2016 ONCA 660, the Court of Appeal for Ontario followed the approach in Dickie, and held that where a party wishes to be relieved of any court-ordered obligation, the proper approach is to bring a motion for a stay of the impugned order.

11If no stay is brought or obtained, while there still maintains a residual discretion to grant the litigant an audience, the Court will normally not hear from the litigant until he/she has complied with the order.

Do the merits play a role?

12In responding to the applicant’s motion, the respondent submits that I must consider the merits of his entire long motion so that I may exercise my discretion while taking all relevant factual considerations into account. I do not agree with the respondent’s position. In Dickie, Justice Laskin refused to grant the appellant an audience, and only went on to consider the merits of the appeal because the majority opinion had done so. In other words, the merits of the appeal did not play much, if any, role in Justice Laskin’s exercise of his discretion to refuse to hear from the appellant.

13That said, and as I advised counsel during the hearing of the applicant’s cross-motion, in my view it was appropriate for me to hear submissions on the issue of this Court’s alleged lack of jurisdiction. My consideration of the jurisdiction issue did not take the entire merits of the respondent’s evidence into account, and I thought it prudent to consider the argument that this Court allegedly never had jurisdiction over the respondent (i.e. from the outset of this proceeding) as part of the exercise of my discretion in deciding the applicant’s cross-motion.

Did the Court have jurisdiction?

14While the respondent has complied with my recent costs order, there is no dispute that he remains in breach of the impugned orders. The respondent takes the position that he in fact has overpaid based upon his view of the merits of the dispute between the parties. That said, until the impugned orders are stayed or set aside, they remain in full force and effect.

15The question is thus whether to permit the respondent’s long motion to proceed in the face of his continuous breaches of the impugned orders, or whether I adjourn the respondent’s motion to permit him to bring a motion seeking a stay of those impugned orders. During argument, counsel for the respondent was asked why the respondent had not sought a stay of the impugned orders to date. In response, counsel for the respondent advised that in his view, his client did not stand much of a chance in obtaining a stay of the impugned orders due to, inter alia, the number of impugned orders and the time which has elapsed since those orders were made.

16In my view, while that may have been a strategic litigation decision, it should have no bearing on the outcome of the applicant’s cross-motion. While the respondent has tendered evidence on his motion supporting the merits of his position on the jurisdiction issue, there is little to no evidence supporting the second and third prongs of a test for a stay (i.e. irreparable harm and the balance of convenience). In any event, I make no comment whatsoever as to the strength or weakness of a request for a stay of the impugned orders.

17On the record before me, there is no doubt that the respondent took numerous substantive steps on the merits after receiving notice of this proceeding in 2013. The respondent retained Ontario counsel, served and filed an Answer, sought relief by way of his own claims in this proceeding, brought motions to set aside orders on their merits, sought interim stays of orders, and then ultimately stopped participating which resulted in his Answer being struck and a final divorce order being granted.

18This Court’s alleged lack of jurisdiction was a position which the respondent in fact raised during the period when he was taking active steps and participating in this proceeding. The respondent now seeks to convince this Court that the grounds in support of his long motion (ie. the Court’s alleged lack of jurisdiction), is something that he only realised in 2019. While the jurisdiction issue may not have been pursued by the respondent until 2019, based upon my review of the record, the respondent was aware of all material facts to support his position (which was communicated by email to the applicant and her counsel in 2013) that he was allegedly never properly served with the originating documents, and as such this Court lacked jurisdiction over him.

19The respondent argues that, in any event, the applicant’s alleged non-compliance with the provisions of the Hague Service Convention renders this proceeding a nullity, and even if the respondent did take steps to support attornment to the jurisdiction of Ontario, there was “nothing to which to attorn” and none of the impugned orders exist in law.

20The relief sought by the respondent on his long motion is grounded in a “building block” approach. To begin, the respondent submits (and I agree) that the Hague Service Convention is to be regarded as a complete code for service in contracting states. As the Court of Appeal for Ontario held in Khan Resources Inc. v. Atomredmetzoloto JSC 2013 ONCA 189, a plaintiff cannot circumvent effective service through the Hague Service Convention even if the defendant has actual notice of service.

21The respondent argues that this Court either had jurisdiction over him, or it did not. The respondent relies upon the decision of the Court of Appeal for Ontario in J. N. v. Durham Regional Police Services 2012 ONCA 428, and in particular the following passage:

“The law has long been clear, however, that jurisdiction is fundamental to a court or tribunal’s authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered.”

22The J.N. decision did not consider or involve any service issues under the Hague Service Convention. The jurisdictiol issue in J.N. was whether section 96(3) of the Courts of Justice Act R.S.O. 1990 c. C.43 could trump the statutory scheme set out for judicial review in the Judicial Review Procedure Act, R.S.O. 1990 C.J1. As such, I question whether the jurisdiction issue in J.N. related to the Court’s power to adjudicate the dispute, or the Court’s authority to dispose of the claim.

23The respondent also relies upon the Court of Appeal for Ontario’s decision in Rothgiesser v. Rothgiesser 2000 CanLII 1153 (ONCA). In Rothgiesser, the parties were married, separated and divorced in South Africa, and the foreign divorce order incorporated the parties’ agreement as to custody and child/spousal support. The husband subsequently moved to Ontario, and brought an application for custody of one of the children who had moved here with him. The parties ultimately resolved that dispute on consent, with the parties agreeing upon an increase in spousal support payable to the wife. The husband subsequently brought another application for an order terminating his spousal support obligations. That application was granted, and the wife subsequently appealed.

24The Court of Appeal for Ontario held that both the initial consent order and the subsequent order terminating spousal support were both made without jurisdiction, and therefore both nullities. The jurisdictional requirements of section 4 of the Divorce Act R.S.C. 1985 C.3 were never met as a result of the parties having obtained a foreign divorce order. The husband’s argument that by consenting to the initial order, both parties accepted the jurisdiction of Ontario, was rejected. In coming to this conclusion, the Court of Appeal for Ontario held that parties cannot confer jurisdiction on a Court where it otherwise lacks “subject matter jurisdiction” (as opposed to in personam jurisdiction).

25The respondent also relies upon the Court of Appeal for Ontario’s decision in Jasen v. Karassik 2009 ONCA 245 in support of his position that attornment cannot confer jurisdiction on the Court where none originally existed. However, in Jasen, the Court of Appeal for Ontario also held that jurisdiction may be asserted against an out of province parent where, inter alia, that parent consents/agrees or attorns to the jurisdiction.

Decision

26Even accepting all of the respondent’s evidence to be true (ie. he was never properly served under the Hague Service Convention), I am not prepared to find at this stage that this proceeding is a nullity. That said, I am also not prepared to dismiss the respondent’s submissions on the jurisdiction issue. While the respondent’s submissions are quite technical at this late stage, and could be subject to an estoppel argument, they are not frivolous.

27However, the fact that the respondent’s position may be tenable does not lead to the result that I dismiss the applicant’s cross-motion. Ten valid and subsisting court orders have been breached. The respondent participated in this proceeding when several of those orders were being made, all the while taking issue with this Court’s jurisdiction over him. It simply cannot now lie in the respondent’s mouth to resurrect his abandoned jurisdiction position and ignore his extensive history of (a) actively participating in this proceeding, (b) using precious judicial resources, and most importantly (c) flouting court orders.

28A court order is not a piece of paper, nor is it a suggestion. To allow the respondent the opportunity at this stage to simply ignore his court-ordered obligations would permit a litigant to bypass all consequences for wilful disobedience, and achieve an audience through the back door when Dickie requires the front door to be shut.

29Simply put, if the respondent wishes that this Court respect his jurisdiction argument, then he must respect the integrity of this Court.

30Accordingly, while I am not prepared to completely refuse the respondent an audience, in my view the proper exercise of discretion is to permit the respondent an opportunity to move for a stay of the impugned orders. If his motion for a stay is successful (and perhaps the stay, if ordered, would be on specific terms), then the respondent would no longer technically be in breach of those orders, and he would then (and only then) be permitted to proceed with his long motion.

31If the motion for a stay is unsuccessful, then the respondent will not be permitted to pursue his long motion in the absence of compliance with the impugned orders.

32The parties may contact the Family Scheduling Office to arrange for a date for the respondent’s motion for a stay, which in my view ought to be argued before a different judge. IF the parties wish, I am prepared to hear the respondent’s long motion if a stay is ordered.

Costs

33In my view, the costs of this motion should be reserved to me pending the outcome of the respondent’s motion for a stay. If the respondent’s motion for a stay is dismissed, then the parties may contact the Family Scheduling Office to arrange for the exchange and filing of costs submissions. If the motion for a stay is granted, then the costs of this motion shall be reserved to me or whichever judge ultimately hears the respondent’s long motion.

Diamond J.