COURT FILE NO.: FS-13-00386031
DATE: 20211210
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carmela Capone, Applicant
AND:
Zoran Fotak, Respondent
BEFORE: S. Shore J.
COUNSEL: Harold Niman and Jen-Yii Liew, for the Applicant
Gary Joseph, Vivian Li and Brian Moher, for the Respondent
HEARD: September 10, 2021
ENDORSEMENT
[1] The Respondent commenced these proceedings in 2019, seeking an order setting aside ten prior court orders, made between April 2013 and January 2016. The Respondent submits the Court lacked jurisdiction to make the initial ten orders, as the original materials were not served on him in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965, 658 U.N.T.S. 163, Can. T.S. 1989 No. 2 (entered into force 10 February 1969, accession by Canada 1 May 1989) (the “Hague Service Convention” or the “Convention”).
The Motion:
[2] The motion before me today is a motion to stay the ten orders, pending the outcome of the Respondent’s motion determining whether the Court had jurisdiction to make the orders. Specifically, the Respondent is seeking an order under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to stay all of the following Orders/Endorsements, which he is seeking to set aside for lack of jurisdiction, and/or lack of authority, and/or failure to properly serve the Respondent, and/or on the basis that the Orders were made without notice:
a. Justice Czutrin, dated April 17, 2013;
b. Justice Czutrin, dated May 2, 2013;
c. Justice Czutrin, dated May 9, 2013;
d. Justice Whitaker, dated June 21, 2013;
e. Justice Croll, dated August 1, 2013;
f. Justice Mesbur, dated April 24, 2014;
g. Justice Horkins, dated October 9, 2014;
h. Justice Paisley, dated October 30, 2014;
i. Justice Chiappetta, dated September 3, 2015; and
j. Justice Paisley, dated January 25, 2016.
[3] In the alternative to staying the orders, the Respondent is seeking an order to set aside or quash the Orders listed above, pursuant to r. 1(7) of the Family Law Rules, O. Reg. 114/99, and rr. 19 and 39.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and/or pursuant to the inherent jurisdiction of the court to prevent a miscarriage of justice.
[4] In the further alternative, the Respondent is seeking an order to change all the above noted Orders/Endorsements pursuant to r. 25(19) of the Family Law Rules.
Very Brief Background:
[5] The parties were married in 1998 and separated in 2008. Following separation, the Applicant remained living in Toronto with the children while the Respondent remained living in New York.
[6] The parties have two children of their marriage, a daughter, now age 26, who works full-time, and a son, now age 25, who just finished a post-secondary degree. The children were 13 and 12 years old respectively when the parties separated and 18 and 16 years old respectively when this litigation began. The Application was issued in early 2013. The Answer was filed in early 2014. The Respondent’s pleadings were struck in late 2014, with a final order obtained in 2016. The Respondent participated in litigation until his pleadings were struck.
[7] The son suffers from a progressive degenerative disease (“Retinitis Pigmentosa”) which is causing him to go blind. He has also suffered from mental health issues. The child has required ongoing physical, emotional, financial and medical support, although he has shown improvement in the last few years. He was recently able to obtain a job as a teaching assistant.
[8] The Respondent is and has been the CEO of several companies and financial institutions since separation, many of which were located in Bermuda. Over the years, he has earned several millions of dollars from the buy-out of his shares or business interests. The Respondent leads an affluent lifestyle, living in both Bermuda and New York at various times.
[9] The Applicant did not work for 20 years during the marriage and after the separation, but in 2018 she went back to work as an assistant manager at Retail Credit. In 2020 she earned approximately $65,000. She has been diagnosed with Sjogren’s syndrome, an auto-immune disease, but she has been able to continue working.
[10] The Family Responsibility Office (FRO) has commenced enforcement proceedings in New Jersey as a result of the arrears of support owing from the Respondent to the Applicant. It is alleged that but for a few payments from garnishments, the Respondent has failed to pay any support under Justice Paisley’s final order. FRO has also suspended the Respondent’s Canadian Passport but he still travels on his Croatian passport. According to FRO’s records, the Respondent owes arrears or child support and spousal support to the Applicant in excess of $2.5 million.
Granting a Stay for Lack of Jurisdiction:
[11] The Respondent brought his jurisdiction motion before Justice Diamond in September 2020. At the same time, the Applicant brought a cross-motion for an order that the Respondent be refused an audience with the court until the Respondent complies with the Orders. Concerned about the significant amount of arrears of support, Justice Diamond ordered that the Respondent would only be permitted to proceed with his long motion on the jurisdiction issue if he was successful on his motion for a stay. However, as set out herein (and as submitted by the Respondent at the motion before me), the test for a stay in these circumstances necessitates a finding with respect to jurisdiction.
[12] The Respondent is seeking a stay of the ten orders on the basis that jurisdiction simpliciter was absent when the original orders were made. In this case, the three stage test for granting a stay, as set out by the Supreme Court of Canada in Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832 , 1987 79 (SCC), [1987] 1 S.C.R. 110 (S.C.C.) and RJR — MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), 1994 CarswellQue 120), would not apply. When a party seeks a stay on the basis that the court lacks jurisdiction simpliciter, the test for whether a stay should be granted is simply whether jurisdiction simpliciter is established: Beaver v. Hill, 2017 ONSC 7245, 4 R.F.L. (8th) 53, at para. 146, rev’d in part on other grounds 2018 ONCA 816, 428 D.L.R. (4th) 288, leave to appeal ref’d [2019] S.C.C.A. No. 82. This makes sense in that if a court lacked jurisdiction from the outset under the Hague Service Convention, it does not have jurisdiction to make any orders in the case or determine any issues on the merits. Jurisdiction is not really an issue between parties, but one of concern for the Court: see Newfoundland and Labrador (A.G.) v. Rothmans Inc, 2013 NLTD(G), 180 at paras 15, 16 and 314.
[13] As stated by Justice Chappel in Beaver, “there is no discretionary middle ground”. Either the court has jurisdiction, or it does not. Parties must be able to predict whether a court will have jurisdiction. There is a need for certainty and stability in private international law, even if it means that the objective nature of the jurisdiction test conflicts with the objective of fairness: see Van Breda v. Village Resorts Ltd. , 2010 ONCA 84 (Ont. C.A.) at par 73 and Newfoundland, at par 120 and 124 and also see Newfoundland at par 154. There is no discretion with respect to jurisdiction in the case before this Court: Beaver v. Hill par 146. It is only if the Court has jurisdiction, that the Court should then turn its mind as to whether or not it should exercise its discretion and grant a stay.
[14] The Respondent relies on a series of cases determined by the Supreme Court of Canada to assist in defining jurisdiction simpliciter and the test to be applied by this Court. However, the crux of those cases are discussions about whether the court should assume jurisdiction, the real and substantial connection test, the law of conflicts, and recognition of foreign orders, none of which are relevant to the issues before this court: see for example Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Barer v. Knight Brothers LLC, 2019 SCC 13, [2019] 1 S.C.R. 573; Muscutt v. Courcelles, 2002 44957 (Ont. C.A.); and Babington-Browne v. Canada (Attorney General), 2016 ONCA 549, 132 O.R. (3d) 690. However, the cases are helpful in understanding the importance of establishing jurisdiction from the onset.
[15] If there is a statutory test for jurisdiction simpliciter and it is not satisfied, the Court cannot fall back on a common-law test to find jurisdiction: Rothgiesser v. Rothgiesser(2000), 2000 1153 (ON CA), 46 O.R. (3d) 577 (Ont. C.A.). The question is whether this Court has jurisdiction under the relevant legislation.
[16] The Respondent submits the court lacked jurisdiction to make the orders because he was not properly serviced under the Hague Service Convention. To determine whether the court had jurisdiction, this court must answer:
Did the Hague Service Convention apply to the 2013 proceedings?
If so, was the Respondent properly served?
Even if the Respondent was properly served and the court had jurisdiction to make the orders, should the court exercise its discretion to grant a stay of the orders?
[17] For the reasons set out below, I find the answer to the questions as follows:
The Hague Service Convention applied to the 2013 proceedings.
The Respondent was properly served under the Convention and therefore the Court had jurisdiction to make the orders; and
I decline to exercise my discretion to grant the stay.
1) Did the Hague Service Convention Apply?
[18] When the proceedings commenced in 2013, the Applicant was living in Ontario and the Respondent was living in New York. The Respondent was served via FedEx delivered to his home address in New York.
[19] In Wang v. Lin, 2016 ONSC 3967, 132 O.R. (3d) 48 (Div. Ct.), the Divisional Court explored the application of the Hague Service Convention on family law matters and determined that the Family Law Rules do not specifically provide for service of documents outside of Canada. It determined that we must therefore look to the Rules of Civil Procedure, as provided for under r. 1(7).
If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.
[20] Rule 17.05(3) of the Rules of Civil Procedure provides:
(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,
(a) through the central authority in the contracting state; or
(b) in a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario.
[21] The United States and Canada are both signatory states of the Hague Service Convention. Pursuant to the Rules of Civil Procedure, the Hague Service Convention applies to service of documents outside of Canada. Specifically, when dealing with the service of documents under the Family Law Rules outside of Canada, r. 17.05(3) of the Rules of Civil Procedure applies, which implements the Convention: Wang, at paras. 72-73.
[22] Therefore, I find the Hague Service Convention would have applied with respect to the service of documents on the Respondent in 2013.
2) Was the Respondent properly served under the Hague Service Convention?
[23] The Hague Service Convention is a complete code for service in contracting states: see Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, 115 O.R. (3d) 1, at paras. 32 and 40. An applicant cannot circumvent effective service through the Hague Service Convention, even if the respondent has actual notice of service. Further, a court cannot validate service if the method of service fails to comply with Hague Service Convention: see e.g. Metcalfe Estate v. Yamaha Motor Powered Products Co., Ltd., 2012 ABCA 240, 536 A.R. 67, at paras. 50 and 53, and Khan Resources Inc.
[24] The court does not maintain any residual discretion. If the Respondent was not properly served under the Hague Service Convention, the court would not have had jurisdiction to make orders in these proceedings.
[25] The rationale behind the lack of discretion to subsequently validate service is clearly set out in Metcalfe Estate, at para. 50:
Allowing courts to validate service which fails to comply with the international standards would undermine that purpose, as the Hague Convention would no longer be a comprehensive authority for service abroad involving the signatories to that Hague Convention. Canadian law is presumed to comply with that purpose. Therefore, rule 11.27 [which gives Alberta courts discretion to validate service] should not be used to avoid the international standard created by the Hague Convention. There are many other nations that are not signatories to the Hague Convention and rule 11.27 undoubtedly applies to service situations within those nations.
[26] Paragraph 13 of the Respondent’s Factum summarizes the basis for the Respondent’s position that the court lacked jurisdiction to make the first order (and therefore subsequent orders) as follows:
In summary, Czutrin J. validated service in 2013 on the incorrect understanding that Mr. Fotak has been served with a FedEx parcel in April 2013. Subsequently, Croll J.’s August 1, 2013 order was issued in the absence of jurisdiction and in contravention of the Hague Convention on Service. As such it is also a nullity. Croll J.’s August 1, 2013 Order forms the basis for the final judgement of Paisley J. Since Croll J.’s Order is a nullity, then so is the Final Order of Paisley J.
[27] The Respondent fails to address the effect of Czutrin, J’s first order, dated April 17, 2013.
[28] Article 10 of the Hague Service Convention provides:
Provided the State of destination does not object, the present Convention shall not interfere with -
a) the freedom to send judicial documents, by postal channels, directly to persons abroad, b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. [Emphasis added.]
[29] The law of the state of origin determines whether service through postal channel is admissible, so long as the state of destination does not object. However, if the state of destination does object, then service of a document in that state must be made through its central authority: Wang, at para. 21. What matters is whether the state of destination made a declaration or notification of its objection when filing its instrument of ratification or accession, not its domestic laws.
[30] In other words, when ratifying the Convention, if the United States did not object to service by postal channels, then service by postal channels is acceptable service, provided that it is valid service under the law of Ontario.
[31] The United States does not object to service by postal channels and therefore the law of Ontario would apply.
[32] Postal channel includes sending the documents by mail or private couriers (which includes services such as FedEx, Purolator and DHL). In the case before this court, the Applicant served the Respondent by FedEx, a postal channel.
[33] The question remaining is whether service by postal channels was permitted by the law of Ontario as the state of origin, at the time the materials were served.
[34] Rule 17.05(3)(b) of the Rules of Civil Procedure stipulates that any attempt to effect service under Article 10 must be done “in a matter that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario”.
[35] For the reasons set out below, I find service was in compliance with the law in Ontario.
[36] Rule 16 of the Rules of Civil Procedure provides:
16.01 (1) An originating process shall be served personally as provided in rule 16.02 or by an alternative to personal service as provided in rule 16.03.
16.03 (1) Where these rules or an order of the court permit service by an alternative to personal service, service shall be made in accordance with this rule.
[37] Under the Rules of Civil Procedure, a court can make an order permitting service by alternative to personal service.
[38] Further, and more importantly to the case before this court, r. 6 of the Family Law Rules provides:
(1) Service of a document under these rules may be carried out by regular service or by special service in accordance with this rule, unless an Act, rule or order provides otherwise.
(15) The court may order that a document be served by substituted service, using a method chosen by the court, if the party making the motion,
(a) provides detailed evidence showing,
(i) what steps have been taken to locate the person to be served, and
(ii) if the person has been located, what steps have been taken to serve the document on that person; and
(b) shows that the method of service could reasonably be expected to bring the document to the person’s attention.
(15.1) An order under subrule (15) may be obtained on motion without notice, except where the person to be served is a government agency.
(18) When a document has been served by a method not allowed by these rules or by an order, the court may make an order approving the service if the document,
(a) came to the attention of the person to be served; or
(b) would have come to the person’s attention if the person had not been evading service.
[39] The Respondent argues that Justice Czutrin validated service under r. 6(18) in 2013, after the materials were sent to the Respondent’s address in New York, which would not be proper service under the Hague Service Convention. However, as set out in detail below, there was a court order permitting service by an alternative to personal service, prior to the service taking place. The service was not validated after the fact. This is crucial to the analysis. At the time service was made, it was made in accordance with the rules and specifically r. 6(1) which provides that if a court order is obtained, service of a document may be carried out by a method other than personal service. In this case, the Order of Czutrin J., permitted another method of service. There was no need for a subsequent validation of service. I accept that under the Hague Service Convention, service cannot be validated after service takes place. But that is not the case in the motion before this court. The order validating service was for clarification for the Respondent and not to rectify allegedly invalid service.
[40] On April 17, 2013, the Applicant brought an ex parte motion. In addition to other relief, Justice Czutrin made an order permitting the Applicant to sell the matrimonial home, requiring the Respondent to preserve his assets, and requiring the Respondent to deliver a sworn financial statement by April 27, 2013. Finally, at paragraph 3, Justice Czutrin ordered the Applicant to serve all of the materials on the Respondent by FedEx or UPS courier to his address in New York. Specifically, paragraph 3 of the order reads as follows:
The Applicant will serve the Notice of Motion Without Notice, Affidavit of Carmela Capone sworn April 16, 2013, Factum and Brief of Authorities, this Order, the Application, Affidavit in Support of Claim for Custody and/or Access, and Financial Statement on the Respondent by FedEx or UPS courier addressed to him at 32 East 76th St, #503, New York City, NY 10021, USA.
[41] Service on the Respondent was affected by couriering the documents to the New York address. Therefore, there was no obligation under Ontario law that the Respondent be served personally. Or in other words, service was made as permitted under the law of Ontario. There is no subsequent order validating service at the next attendance because no validation for substituted service was needed in light of the original order. As an extra measure, counsel also emailed a copy to the Respondent. The Respondent acknowledges receipt of the documents in an email dated May 2, 2013, when he refers to the order regarding disclosure[^1].
[42] At the May 9 attendance, the Applicant advised the court that the Respondent questioned the validity of service. Therefore, Czutrin J., made an order clarifying that service was validated. The validation of service can be found at paragraph 3 of the order, dated May 9, 2013. It is clear from reading the transcript from that attendance, that the Court made the order validating service because of the Respondent’s claim that he was not served properly “so he’s aware that he has been properly served and he has to comply with the existing orders”: Transcript of May 9, 2013, page 4, line 16. The conference date was adjourned to ensure the Respondent had 60 days from date of service to serve and file his Answer prior to the case conference (although the Rules only required 30 days). The Applicant was also prevented from bringing a motion for contempt in the interim.
[43] I therefore find that the Respondent was properly served under the Hague Service Convention and therefore the Court had jurisdiction to make the orders in question.
Other claims under the Hague Service Convention:
[44] The Respondent also submits that Article 15(1) of the Convention does not permit a court in an originating state to issue judgment if a period of not less than six months has elapsed since the transmission of the document. I find no breach of this provision in the case before me.
[45] The Respondent was served in April/May 2013. He did not participate in the case conference on June 21, 2013 and costs were ordered against him. In August 2013, after the case conference date, and well after the date for filing the Answer passed, the Applicant brought a motion for contempt before Justice Croll. The contempt allegation was based on the Respondent’s failure to provide disclosure, a financial statement and other court ordered disclosure. It was only in August 2013 that the court made its first interim order with respect to support.
[46] The Respondent took no steps in the litigation for a full year. In April 2014, the Respondent served his Answer and financial statement. At the same time, he brought a motion to set aside the Order of Justice Croll and for an order varying the interim child support and interim spousal support. The Respondent advised the court that he “did not file his material in a timely manner because he did not have the financial means to hire a lawyer”. The Respondent argued that the ex parte orders should be set aside on the grounds that they were obtained by fraud and that Applicant failed to make full and complete disclosure to the court. The Respondent acknowledged that as of January 2014, he had been earning a salary of approximately $500,000. However, he made no payments towards support and took no steps in the proceedings until April 2014. Despite his failure to make any support payments, Justice Mesbur stayed the Order of Croll J., but ordered the Respondent to pay reduced amount of support in the interim. By October 2014, the Respondent was in arrears of child support and spousal support in an amount of over $175,000. The Respondent attended the October 2014 motion before Justice Horkins with his counsel. The Respondent was given 30 days to pay the arrears of support or his pleadings would be struck. The Respondent failed to pay the arrears and it was only in September 2015 that his pleadings were struck, and the Applicant proceeded to an uncontested trial. Approximately a year and half had elapsed from the service of documents until a judgment was issued in this case. Therefore, I find there was no breach of Article 15(1) of the Convention.
3) A Court’s discretion to grant a stay:
[47] There are several provisions in the legislation which allow a court to exercise discretion and grant a stay of court orders pending determination of any outstanding issues. For the reasons set out below, I decline to exercise my discretion to grant a stay of ten court orders of this court.
[48] Section 106 of the Courts of Justice Act reads as follows:
A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
[49] Section 106 is discretionary and may be granted on “such terms as are considered just”.
[50] Further, a court may exercise its discretion and grant a stay under r. 25(19) of the Family Law Rules, which provides as follows:
The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[51] The Respondent also referred the court to the Rules of Civil Procedure for jurisdiction to grant a stay, by relying on r. 1(7) of the Family Law Rules, in that if “these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure”.
[52] I will address the latter arguments before addressing the three-part test set out by the Supreme Court of Canada in relation to s.106 of the Courts of Justice Act.
[53] The Respondent refers to r.17 of the Rules of Civil Procedure. However, under r.17.06 of the Rules of Civil Procedure a motion for a stay under this rule must be brought prior to delivering a Defence, or in a family case, an Answer. The Respondent served and filed his Answer back in 2014 and therefore r.17.06 does not apply to the motion before this Court.
[54] The Respondent then refers to rr. 19.03 and 19.08 of the Rules of Civil Procedure, which discuss the discretion to set aside a noting in default on terms that are just, as well as r. 39.01(6), which gives the court discretion to set aside an order made on a motion without notice, where the moving party failed to make full and frank disclosure.
[55] The time for moving to set aside an order made on an ex parte basis due to lack of full and frank disclosure has long since passed. The Respondent participated in numerous court attendances following the ex parte order of Justice Czutrin in 2013. Further, In April 2014, in a motion before Justice Mesbur, the Respondent specifically argued that the prior orders should be stayed or set aside on the basis that the ex parte orders were obtained by fraud and that Applicant failed to make full and complete disclosure to the court. This issue has already been argued before the Court.
[56] A final order was made in January 2016. The Respondent did not move to set aside the orders and did not appeal the orders. He took no steps for almost four years, until the fall of 2019 when he brought this motion to set aside all prior orders for lack of jurisdiction by the court.
[57] For the reasons set out above, I am not prepared to stay the orders under rr. 19.03, 19.08 or 39.01(6) of the Rules of Civil Procedure or r. 25(19) of the Family Law Rules.
[58] Should I exercise my discretion and grant a stay “on such terms as are just”? For the reasons set out below, I find the effect of exercising my discretion and granting a stay would be grossly unfair to the Applicant and would bring the overall integrity of the administrative of justice into disrepute. Therefore, I decline to exercise my discretion to order a stay.
[59] Now that jurisdiction has been established, to obtain a stay of the Order under s.106 of the Courts of Justice Act, the Respondent must satisfy the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General) , 1994 117 (SCC), [1994] 1 S.C.R. 311 (S.C.C.) at para. 43:
Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases.
[60] The serious question to be tried in this case was the question of jurisdiction. Although the threshold is low, the jurisdiction issue had to be analyzed in detail when determining whether to grant a stay for lack of jurisdiction. This court has already determined that the court had jurisdiction to make the orders. I therefore find that the Respondent’s case does not have merit because there is no other issue to be tried. But even if I am wrong in this finding, the Respondent would not have passed the next part of the test.
[61] The second part of the test mandates a determination of whether a refusal to grant the stay would so adversely affect the Respondent’s own interest that harm could not be remedied if the eventual decision on the merits does not accord with the result of the final decision. The real harm in not staying the proceedings is the financial harm to the Respondent of continuing the orders, which can be remedied and cured by a final order if he is successful.
[62] The harm to the Respondent for not complying with court orders going back 9 years cannot be the focus of my analysis on whether to stay the court orders today. While the Respondent submits that he has overpaid support, he has not made voluntary support payments under the order since 2016. Further, his alleged overpayment relates mostly to the payments made prior to the final order of this court in 2016. There were findings made in the final order with respect to the arrears of support owing at that time. This order was not appealed. Unless appealed and overturned, this Court must accept the findings from the prior court orders. The Respondent was found to be in significant arrears of support by that time, and his arrears have continued to accumulate since 2016. Therefore, the harm arising as a result of his failure to pay any support since 2016 is of his own making.
[63] But even if I am wrong in my findings with respect to the second part of the test, the Respondent would not be successful on the third part of the test. The last part of the test requires the court to consider which party would suffer the greatest hardship if the stay is granted or denied. I find the Applicant would suffer the greatest hardship if the stay is granted. The Respondent is seeking to stay ten court orders made as early as 2013. Staying these orders will not only create chaos for the parties but will leave the Applicant in dire financial circumstances. She has spent countless hours and money in legal fees obtaining the orders and trying to enforce the orders over the last nine years, which orders have been ignored by the Respondent. The prejudice to her is immense. There would be no orders in place for support pending a final determination. It would be extremely difficult, if not impossible, to try to obtain bank records and financial documents going back to 2013. Further, the Respondent participated in the earlier proceedings. Although the Respondent will suffer harm if the orders are not stayed, the Respondent took no steps to address the setting aside of the orders until 2019 and did not appeal the orders he now seeks to stay. The Respondent first raised the issue of jurisdiction in May 2013 and waited six years to move on same.
[64] The Applicant should be entitled to rely on the court orders unless and until they are set aside. To do otherwise in these unusual set of circumstances would bring the administration of justice into disrepute.
[65] In determining whether to exercise discretion and stay the outstanding orders, I am guided by the primary objective in the Family Law Rules, rr. 2(2), 2(3) and 2(4):
2(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
[66] Of the ten orders, the first order was made in 2013 and the last order was made in 2016. The Respondent actively participated in the litigation from early 2014 and on, until his pleadings were struck, and a final order was obtained in 2016. He did not appeal any of the decisions.
[67] Further, in an email to the Applicant’s counsel, on May 7, 2013, the Respondent stated, “This does not constitute service and so is invalid in its entirety”. Although the Respondent raised the issue of service and jurisdiction in May 2013, he waited several years to take any further steps, despite participating in the litigation during that time and being represented by competent counsel. By November 2014, he was represented by Lerners LLP and subsequently retained other lawyers until retaining his current lawyers. It would be grossly unfair to the Applicant to stay court orders that have been in place for so many years, which orders have been flaunted and largely ignored by the Respondent: see by way of example the Endorsements of Croll J., dated August 1, 2013; Mesbur J., dated April 24, 2014, at paras. 12-18 and 28; and Diamond J., dated September 1, 2020, at paras. 14, 15, and 27-29.
[68] Parties should be able to rely on court orders, especially when so much time has passed since the orders were made. To stay the orders on an interim basis in these circumstances would be a miscarriage of justice and bring the administrative of justice into disrepute.
[69] No circumstances exist in the case before me that would justify a stay of ten court orders at this time.
ORDER:
[70] Court order to go as follows:
The Respondent’s motion to stay the orders of:
a. Justice Czutrin, dated April 17, 2013;
b. Justice Czutrin, dated May 2, 2013;
c. Justice Czutrin, dated May 9, 2013;
d. Justice Whitaker, dated June 21, 2013;
e. Justice Croll, dated August 1, 2013;
f. Justice Mesbur, dated April 24, 2014;
g. Justice Horkins, dated October 9, 2014;
h. Justice Paisley, dated October 30, 2014;
i. Justice Chiappetta, dated September 3, 2015; and
j. Justice Paisley, dated January 25, 2016
is dismissed.
[71] Pursuant to Rule 24(1) of the Family Law Rules, the Applicant is entitled to costs of this motion as the successful party. If the parties are unable to resolve the issue of costs within ten business days, then costs shall be determined, in writing, as follows:
a) The Applicant shall serve and file her costs submissions within 30 days of receipt of this order, limited to 3 pages, plus any offers to settle and her Bill of Costs;
b) The Respondent shall serve and file his costs submissions within 45 days of receipt of this order, limited to 3 pages, plus any offers to settle and his Bill of Costs;
c) The Applicant shall serve and file her reply within 60 days of receipt of this order, limited to 2 pages.
S. Shore J.
Date: December 10, 2021
[^1]: The Order of Czutrin J., dated May 7, 2013, was couriered to the Respondent at the same address and emailed. The Respondent replied to the email right away. The Respondent was also advised in the May 7 email exchange of the May 9 court date and of the case conference scheduled for June 7. All of the documents were provided to him again by email during the same email exchange.