Court File and Parties
COURT FILE NO.: 727-21 DATE: 2022-02-17 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Violetta Sypniewski, Applicant AND: Donovan Locke, Respondent
BEFORE: The Honourable Mr. Justice A. Pazaratz
COUNSEL: Barbara A. Barnett, Counsel, for the Applicant Orlando Vinton, Counsel, for the Respondent Added party: Faiza Sultana, Sean Dewart and Natasha Novac, Counsel for the added party
HEARD: February 17, 2022
Endorsement
[1] It is unclear how this matter has become so incredibly complicated, but I will try my best to make some sense of it.
[2] The Applicant mother and the Respondent father had an unmarried relationship of about 14 years. They have a 14 year old daughter Mya.
[3] The mother identifies the date of separation as June 1, 2019. She says Mya has remained primarily in her care since the date of separation. She says the father is not paying any child or spousal support.
[4] During the relationship the parties owned a property as joint tenants. Around the time of separation (or shortly prior) the mother took steps to sever the joint tenancy, converting the title to tenants in common.
[5] The father then brought a civil action in Hamilton against the mother, in relation to the property.
[6] The father then brought a second civil action in Hamilton against the mother and Faiza Sultana, the mother’s former lawyer with whom the mother had consulted in relation to severing the joint tenancy.
[7] The father then brought a third civil action in Hamilton against the mother, Faiza Sultana, and Shannon Murphy, the lawyer who subsequently did the legal work effecting the severance of the joint tenancy.
[8] All three of those civil actions are still active at the Sopinka courthouse, 45 Main Street East, here in Hamilton. Summary judgment motions are pending in each of those actions, seeking that they be dismissed.
[9] None of those actions include any claims in relation to parenting issues in relation to the child Mya, child support, or spousal support.
[10] The mother brought this application in family court seeking to deal with all of the usual issues stemming from the breakdown of an unmarried relationship. Her claims include a request for a determination of decision making and parenting time in relation to the child; child support; and spousal support. The mother also asks to deal with certain property issues. In the civil action in Sopinka the mother has requested that any property issues be consolidated with the family court proceeding.
[11] The father served an Answer in relation to the mother’s family court Application. Mr. Vinton listed himself as counsel of record in relation to that Answer.
[12] In that Answer the father added Faiza Sultana as a party.
[13] However, having served his Answer on the mother’s counsel and on Faiza Sultana, the father has never filed his Answer with the court.
[14] Because no Answer was filed, a Case Conference could not be scheduled without the consent of all parties.
[15] In October 2021 Mr. Vinton on behalf of the father consented to today’s Case Conference being scheduled. All parties consented.
[16] The mother served the father with a Case Conference brief. There were problems with the format of the materials, and they were not accepted by the court. The mother corrected the defect and asked the father’s counsel for consent to late filing, but Mr. Vinton refused.
[17] However, the father has not served either a Case Conference brief or a Confirmation.
[18] Instead, Mr. Vinton attended today. He advised that he is solicitor of record for the father in relation to the three Sopinka actions, but he is not at this time placing himself on record in relation to this family court action. Technically, with the father’s Answer never having been filed, I believe Mr. Vinton is correct that he has not placed himself on record. Because technically the father has not filed pleadings in this action.
[19] Mr. Vinton requested an adjournment for two reasons.
[20] Firstly, he said he advised the mother’s counsel yesterday that the father would not be available to attend today because the father is a police officer in Toronto, and he is required to work as a result of the current public emergency in Ottawa relating to the protest. I fully accept that this is an unusual and unavoidable explanation for his non-attendance.
[21] But his work commitment in relation to the Ottawa protest has nothing to do with the fact that the father served an Answer and never filed it. Nor does it have anything to do with the fact that the father has never filed a Case Conference brief, nor has he made any disclosure required to deal with support issues (the mother says he is not paying any support).
[22] Mr. Vinton described his second ground for an adjournment as “jurisdictional”. He said the mother’s family court claims should not be allowed to proceed until the property actions at the Sopinka courthouse are resolved. I tried to explain that I didn’t understand the logic. The Sopinka actions have nothing to do with parenting, decision-making, time-sharing, child support, spousal support etc. But Mr. Vinton submitted that because the Sopinka actions relate to property, and because the mother’s family court application also includes as one of its enumerated claims some requests in relation to property, that the whole of the family court application cannot be allowed to proceed.
[23] Understandably, the mother’s counsel disagrees with the father’s interpretation which she described as self-serving. He’s not paying any child support, and he wants to block any determination of child support because there’s another court case in another building that has nothing to do with child support.
[24] Counsel for Ms. Sultana expressed equal frustration about being served with claims which have never been filed with the court.
[25] I think we need to get back to basics.
[26] The father has been served with an Application.
[27] By serving an Answer but never filing it, it’s equivalent to not responding to an Application within the time limits set out in the Rules.
[28] The mother just wants to get on with her claims, because she says she desperately requires relief. This is understandable.
[29] Counsel for Ms. Sultana seek an opportunity to bring a motion to have the father’s claims against Ms. Sultana in family court dismissed. But, as stated, until they are filed, those claims aren’t technically before the court.
[30] I will try to rectify this situation.
[31] The father shall be allowed until March 18, 2022 to file any Answer he wishes to file in relation to the mother’s application. He shall have the option of filing the Answer already served, or he may file a different Answer, so long as it has been served on all affected parties. If the father does not file an Answer by March 18, 2022, he will be noted in default in the family court proceeding. If he does not file his documents as required herein, there will be no claim in family court which Ms. Sultana will have to respond to, and the mother will be allowed to proceed on an uncontested basis.
[32] In the meantime, even though the Case Conference could not proceed today, the mother should not be further delayed in dealing with pressing issues. The mother may bring motions.
[33] After I read this endorsement, Mr. Vinton wanted to clarify that he is appearing as an officer of the court.
[34] I make no determination as to any of the issues in the other civil actions.
[35] In the unique circumstances of this case, costs are reserved. In the event that the father does not end up filing his claim in relation to Ms. Sultana, she will be permitted to have the issue of costs returned to this court as a distinct issue.
[36] Adjourned to timelines.
Pazaratz J. Date: February 17, 2022