Court File and Parties
Court File No.: CV-24-00719272 Date: 2024-07-19 Superior Court of Justice – Ontario
Re: Jennifer Lynn James, Applicant And: Carol Fern James and Jeannie Andrew and The Public Guardian and Trustee, Respondents
Before: M. D. Faieta J.
Counsel: Bryan C. McPhadden, for the Applicant Christopher M.B. Graham, for the Respondent Carol Fern James No one appearing for the Respondent Jeannie Andrew and The Public Guardian and Trustee
Heard: June 25, 2024
Endorsement
Faieta J.
[1] The applicant, Jennifer Lynn James (“Jennifer”), brings this motion for an order adding Gideon Amofa (“Gideon”) as a respondent to this application, an order validating service on Gideon, and an order to enforce an Order issued June 5, 2024, by the Circuit Court of the Twentieth Judicial Court in and for Lee County, Florida. Gideon did not respond to this motion. The respondent, Carol James (“Carol”), did not file any materials that responded to the issues on this motion although she did make submissions in relation to whether the Order should be enforced.
Background
[2] Carol is 79. Her husband passed away following a long-term marriage in 2017. There are two children of the marriage: Jennifer and Dr. Lesley James (“Lesley”). Carol owns a home in Fort Myers and she typically lives there each year over the winter for about six months. Carol has a net worth of about $11 million. In January 2024, while shopping for her pharmaceutical needs at a supermarket in Fort Myers, Carol met Gideon, age 31, a pharmacist at this supermarket. Their friendship quickly became a romantic relationship. Given their age difference, Carol’s daughters became concerned that Gideon was taking advantage of Carol and repeatedly expressed this concern to Carol. This concern was only heightened when Carol’s daughters learned that Carol sought to withdraw about $1.4 million from her TD account in Toronto in order to buy a larger home in Bonita Springs, Florida. On April 29, 2024, Carol and Gideon were married in Florida although Carol’s daughters did not become aware of her marriage until weeks later.
[3] Coincidentally, also on April 29, 2024, Jennifer commenced this guardianship application for, amongst other things: 1) a declaration that Carol is incapable of managing her property and that she is incapable of managing her personal care; 2) an order appointing Jennifer as her guardian for property and personal care; 3) an order that Carol be restrained from transferring, assigning or encumbering her home in Toronto; 4) an order restraining Carol or any other person from transferring, spending or otherwise disposing of Carol’s personal property without Jennifer’s approval. On May 2, 2024, on an ex parte basis, an Order was granted preserving Carol’s assets in Ontario. It had come to light that Carol had requested that about $1.4 million be transferred from her bank to fund the purchase of another home in Florida. On May 14, 2024, I declined to extend the Order issued on May 2, 2024, as no evidence had been adduced that Carol lacks capacity and for other reasons.
[4] In the days or weeks prior to May 14, 2024, either Jennifer or Lesley filed a guardianship petition in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. No materials from that proceeding have been filed with this court.
[5] On May 22, 2024, Jennifer filed a second petition, in the same court, under the Section 825.103 of the Florida Statutes for protection against the exploitation of a vulnerable adult. Incapacity is not a requirement under this statute. Gideon is the sole respondent in that petition.
[6] On May 23, 2024, a temporary injunction (“Temporary Injunction”) was granted on an ex parte basis under the Florida statute. Amongst other things, it: 1) prohibits Gideon from having contact with Carol; 2) prohibits Gideon from coming within 500 metres of Carol’s home, 3) freezes Carol’s assets held by TD Wealth Private Investment Advice and at TD Wealth Private Investment Accounts, in Toronto even if such assets are held jointly; and, 4) prohibits Gideon from having access to those assets even if they are held jointly.
[7] On May 24, 2024, the Temporary Injunction was extended to June 5, 2024 although some of its terms were modified. It states:
Jennifer Lynn James has filed a Petition for Injunction for Protection Against Exploitation of a Vulnerable Adult under section 825.1035, Florida Statutes, seeking an injunction to protect Carol Fern James who has been identified as a “Vulnerable Adult”. …
Under the laws of Florida, the Court has jurisdiction over the Vulnerable Adult, the Petitioner, the subject matter, and has jurisdiction over the Respondent upon service of the temporary injunction.
SECTION I. NOTICE OF HEARING
Because this Temporary Injunction for Protection Against Exploitation of a Vulnerable Adult has been issued without prior notice to Respondent, the Petitioner and Respondent are instructed that they are scheduled to appear and testify at a hearing regarding this matter on June 5, 2024 at 9:00 AM., when the Court will consider whether to issue a Final Judgment of Injunction for Protection Against Exploitation of a Vulnerable Adult , which would remain in effect until modified or dissolved by the Court. …
SECTION II. FINDINGS
The statements made under oath by Petitioner make it appear that Section 825.1035, Florida Statutes, applies. It also appears that an immediate and present danger of exploitation of the Vulnerable Adult exists. There is a likelihood of irreparable harm and non-availability of an adequate remedy at law. There is a substantial likelihood of success on the merits. The threatened injury to the Vulnerable Adult outweighs possible harm to the Respondent. Granting a temporary injunction will not disserve the public interest. This temporary injunction provides for the Vulnerable Adult's physical or financial safety.
SECTION III. TEMPORARY INJUNCTIONS AND TERMS
This injunction shall be effective until the hearing set above and in no event for longer than 15 days, unless extended by court order. If a final order of injunction is issued, the terms of this temporary injunction will be extended until service of the final injunction is effected upon Respondent. This injunction is valid and enforceable in all counties of the State of Florida. …
Any violation of this injunction, whether or not at the invitation of the Petitioner, the Vulnerable Adult, or anyone else, may subject the Respondent to civil or indirect criminal contempt proceedings, including the imposition of a fine or imprisonment, and may also result in an award of economic damages and attorney’s fees and court costs as provided by Section 825.1035. …
ORDERED and ADJUDGED: This is an Injunction for Protection Against Exploitation of a Vulnerable Adult. The person identified as a Vulnerable Adult herein is Carol Fern James, and references herein to the Vulnerable Adult are to Carol Fern James.
Exploitation Prohibited. Respondent shall not commit, or cause any other person to commit, any acts of Exploitation, as defined in Section 825.103(1), Fla. Stat., of the Vulnerable Adult. Respondent shall not commit any other violation of the injunction through an intentional unlawful threat, word or act against the Vulnerable Adult.
Provisions concerning the home. (Initial the following paragraphs if they apply)
✔ Possession of the Home. The Vulnerable Adult and NOT the Respondent shall have temporary possession of the home or other dwelling (hereafter "home") located at: 8945 Bristol Bend, Lexington Country Club, Fort Myers, FL …
✔ Damage or removal: Respondent shall not damage or remove any furnishings or fixtures from the parties’ former shared premises . …
Other provisions contact. (Initial the following paragraphs if they apply)
✔ Unless otherwise provided herein, Respondent shall have no contact with the Vulnerable Adult. Respondent shall not directly or indirectly contact the Vulnerable Adult in person, by mail, e-mail, fax, telephone; through another person, or in any other manner. Further, Respondent shall not contact or have any third-party contact with anyone connected with the Vulnerable Adult's employment or school to inquire about the Vulnerable Adult or to send any messages to the Vulnerable Adult. Unless otherwise provided herein, Respondent shall not go to, in, or within 500 feet of the home of the Vulnerable Adult , the current or any subsequent place of employment of the Vulnerable Adult or the following other places (if requested in the Petition) where the Vulnerable Adult goes often:
✔ Respondent may not knowingly come within 100 feet of the Vulnerable Adult's automobile , at any time whether or not it is occupied.
Provisions concerning assets. (Initial the following paragraphs if they apply)
✔ The Respondent will have no access to the following described assets of the Vulnerable. Adult held at TD Wealth Private Investment Advice Accounts, 66 Wellington St. West, 36th Floor, Toronto, ON M5K 1A2, Canada … even if titled jointly with the Respondent, or in the Respondent’s name only.
✔ The following described assets of the Vulnerable Adult held at TD Wealth Private Investment Advice Accounts, 66 Wellington St. West, 36th Floor, Toronto, ON MSK 1A2, Canada name and address of depository or financial institution) even if titled jointly with the Respondent, or in the Respondent's name only, are hereby frozen. …
✔ Pending the hearing scheduled above or further order of the Court, the following specified living expenses of the vulnerable adult will continue to be paid as follows: … Petitioner … will continue to pay … Required minimum distribution required by federal law to be withdrawn from the VA’s IRA, pharmacy, hospital, dental and other medical expenses of the VA and fees associated with the ordinary maintenance of the VA’s residence in Ft. Myers, FL and Ontario, Canada (e.g. real estate taxes, condominium association fees, homeowner’s insurance premiums, ordinary repairs. …
✔ Respondent and Petitioner shall notify the Clerk of the Court of any change in either his or her mailing address, or designated email address(es) within 10 days of the change. … [Emphasis added]
[8] On June 3, 2024, Jennifer brought a further application before this Court for, amongst other things, an order restraining the Carol or any other person from transferring, using, spending, dissipating, or otherwise disposing of Carol’s personal or real property. This application was dismissed as there was no evidence that Carol lacks capacity to manage her property and, on the evidence, there was no other legal basis to support the orders sought: see James v. James, 2024 ONSC 3916.
[9] On June 5, 2024, a Final Judgment was not granted but rather it was ordered that the Temporary Injunction would remain in effect until further ordered.
Should an Order Validating Service be Granted?
[10] The Applicant asks that service of the motion record on Gideon be validated pursuant to Rule 16.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which states:
Where a document has been served in a manner other than one authorized by these rules or an order, the court may make an order validating the service where the court is satisfied that,
(a) the document came to the notice of the person to be served; or
(b) the document was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
[11] The Applicant states that service should be validated for the following reasons:
(a) On June 7, 2024, the motion record was sent to the same email address used by Gideon in the Florida proceeding. The email message did not “bounce back”.
(b) The transcript of the evidence held at the hearing on June 5, 2024 in Florida shows that Gideon testified that he and Carol stayed in her Toronto home from May 24, 2023 until May 30, 2023.
(c) On June 7, 2024, a process server attended at the Toronto home, rang the doorbell and there was no answer. There were no cars in the driveway.
(d) On June 8, 2024, the same process server re-attended, rang the doorbell and there was no answer. There were no cars in the driveway. She attached a note to the front door of the Toronto home that asked Gideon to contact her because she was trying to serve “legal documents”.
(e) On June 9, 2024, the same process server re-attended, rang the doorbell and there was no answer. There were no cars in the driveway. The note that she had attached one day earlier was still on the front door.
(f) A copy of the motion record was provided to Gideon’s lawyer in the Florida proceeding. The lawyer did not accept service.
[12] There is no evidence that Gideon or Carol were staying at the Toronto home on June 7-9, 2024 and thus there is no reason to find that Gideon was aware of the motion record. A copy of the motion record was not left at the front door on any of the three attendances. The efforts of the process server do not support a finding that service of the motion record should be deemed. This leaves the question of whether service by email or service on Gideon’s lawyer in Florida constitute a basis for deeming service.
[13] Gideon is a resident of Florida. Both Ontario and the United States of America are signatories to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 15 November 1965 (the “Hague Service Convention”). Article 1 of the Hague Service Convention states that the "Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad". The Hague Service Convention is implemented in Ontario by Rule 17.05(3) of the Rules of the Civil Procedure which states:
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.
[14] In Capone v. Fotak, 2021 ONSC 7992, at para. 23, Shore J. noted that:
(a) The Hague Service Convention is a complete code for service in contracting states.
(b) An applicant cannot circumvent effective service through the Hague Service Convention, even if the respondent has actual notice of service.
(c) A court cannot validate service if the method of service fails to comply with Hague Service Convention.
[15] Given the scope of Article 1 of the Hague Service Convention, it is my view that personal service on a foreign resident is effective under Rule 16.02(a) of the Rules of Civil Procedure if such service occurs while the foreign resident is physically present within Ontario. Given the principles outlined in Capone, as well as Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 18, at para. 32, the other provisions for service, such as acceptance of service by a lawyer under Rule 16.03(2) and substituted service under Rule 16.04(1), do not apply when service is attempted on a foreign resident given the requirements of the Hague Service Convention.
[16] Accordingly, I dismiss the motion to validate service.
Should Gideon be Added as a Party to this Application?
[17] Rule 5.03(4) of the Rules of Civil Procedure states:
The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
[18] As noted above, the Application before the court, issued on April 29, 2024, is a guardianship application. Gideon is not mentioned by name anywhere in the Application. The Temporary Injunction is not mentioned in the Application. The Applicant has not sought leave to amend the Application to plead the enforcement of the Temporary Injunction. I do not see how the addition of Gideon as party to this guardian application would enable this court to adjudicate effectively and completely on the issues in the proceeding, given that the issues turn on Carol’s capacity.
[19] The Applicant should have brought a motion to amend the Application to plead the enforcement of the Temporary Injunction or have brought a new application to enforce the Temporary Injunction in Ontario. I dismiss this motion to add Gideon as a party to this Application.
Should the Temporary Injunction be Enforced in Ontario?
[20] The enforcement of foreign non-monetary judgments in Ontario was not recognized until Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612.
[21] In Pro Swing, at paras. 10-15 and 26-31, Deschamps J. explained the differences in approach to the recognition and enforcement of such non-monetary judgments when compared to foreign money judgments:
10 The traditional common law rule is clear and simple. In order to be recognizable and enforceable, a foreign judgment must be “(a) for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and (b) final and conclusive, but not otherwise” …
11 The foreign judgment is evidence of a debt. All the enforcing court needs is proof that the judgment was rendered by a court of competent jurisdiction and that it is final, and proof of its amount. The enforcing court then lends its judicial assistance to the foreign litigant by allowing him or her to use its enforcement mechanisms. …
12 As this Court confirmed in Beals v. Saldanha, [2003] 3 S.C.R. 416, 2003 SCC 72 (S.C.C.), absent evidence of fraud or of a violation of natural justice or of public policy, the enforcing court is not interested in the substantive or procedural law of the foreign jurisdiction in which the judgment sought to be enforced domestically was rendered.
13 It is significant that, under the traditional common law rule, the recognition and enforcement of a money judgment does not require an interpretation of the foreign law, nor does it reach deeply into the structure of the domestic court’s justice system, since the money obligation created by the foreign judgment is sufficient evidence to enforce it in the Canadian justice system. Care must thus be taken not to lose sight of the limited impact the common law rule has on our justice system. Judicial assistance under the new rule will move beyond triggering mechanisms necessary to collect a debt. The separation of judicial systems is thus likely to be altered, since a domestic court enforcing a foreign non-money judgment may have to interpret and apply another jurisdiction’s law. Black illustrates this by way of the following example (at p. 89):
A [foreign court] might issue an injunction which spells out in great detail what, when and how a defendant must do (or refrain from doing) something. If [a Canadian court] recognizes such an injunction then the courts in [the foreign country] have been permitted to reach deeply into the enforcement regime of [Canada]. It is the original [foreign order] ... (albeit confirmed by [a Canadian court]) that will control what the defendant must and must not do in [Canada]. Of course, if the defendant in [Canada] fails to comply with the order then any contempt proceedings in [Canada] will be conducted in accordance with [Canadian] procedure. But apart from that, when [a Canadian court] agrees to enforce an injunction issued by a court in [a foreign country], then [the foreign country] is dictating and controlling the enforcement process in [Canada], something that does not occur when [the Canadian court] enforces a foreign money judgment.
14 To depart from the fixed-sum component of the traditional common law rule will open the door to equitable orders such as injunctions, which are key to an effective modern-day remedy. The recognition and enforcement of equitable orders will require a balanced measure of restraint and involvement by the domestic court that is otherwise unnecessary when the court merely agrees to use its enforcement mechanisms to collect a debt .
15 I agree that the time is ripe to revise the traditional common law rule that limits the recognition and enforcement of foreign orders to final money judgments. However, such a change must be accompanied by a judicial discretion enabling the domestic court to consider relevant factors so as to ensure that the orders do not disturb the structure and integrity of the Canadian legal system . …
26 Under the traditional common law rule, courts have relied on the notion of comity to justify the recognition and enforcement of foreign judgments. But it is worth noting that in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, the Court took a balanced approach to comity. In that case, La Forest J. first referred to (at p. 1096):
...the real nature of the idea of comity, an idea based not simply on respect for the dictates of a foreign sovereign, but on the convenience, nay necessity, in a world where legal authority is divided among sovereign states of adopting a doctrine of this kind.
He adopted the more complete formulation of the concept of comity (at p. 1096) developed by the U.S. Supreme Court in Hilton v. Guyot, 159 U.S. 113 (U.S. N.Y. 1895), at pp. 163-64:
...the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.
27 Comity is a balancing exercise. The relevant considerations are respect for a nation's acts, international duty, convenience and protection of a nation's citizens. Where equitable orders are concerned, courts must take care not to emphasize the factor of respect for a nation's acts to the point of imbalance. An equitable order triggers considerations of both convenience for the enforcing state and protection of its judicial system. I mention these two considerations because they will be of particular relevance in the present case .
28 Under the traditional rule, once the jurisdiction of the enforcing court is established, the petitioner must show that he or she meets the conditions for having the judgment recognized and enforced. In the case of an equitable order, it is at this stage that considerations specific to the particular nature of such orders should be contemplated. If the particular concerns raised by equitable orders are considered by the judge at the stage of determining whether the order is suitable for enforcement, they will not ordinarily need to be raised again at the defence stage. The traditional defences relating to the merits or to procedure, which are summarized in Beals, should not be different for equitable orders than for common law judgments. However, there might be other considerations, such as laches, that would make it inequitable to enforce a foreign judgment. Such considerations should not generally entail revisiting the merits of the case .
29 The present case does not require the consideration of defences particular to the nature of equitable orders. Thus, I do not have to expand on Major J.'s dictum in Beals that the evolution of private international law may require the creation of new defences (para. 42). The existing defences do not need to be broadened for the purposes of the case at bar. Similarly, the finality requirement, which is indispensable, although more complex in the context of an equitable order than in that of a common law order, could be the object of further commentary. However, these topics need not be fully addressed in the present case. Revisiting the defences and defining the finality requirement in the context of equitable orders are better left for another day.
30 … Forum non conveniens and letters rogatory are mechanisms that, like the enforcement of foreign judgments, rely on comity. For these mechanisms, as for the enforcement of equitable orders, the balancing exercise of comity requires a careful review of the relief ordered by the foreign court. This review ensures that the Canadian court does not extend judicial assistance if the Canadian justice system would be used in a manner not available in strictly domestic litigation . It could be tempting to use form over substance as the distinctive criterion. However, the distinction between form and substance can sometimes be elusive or even misleading. In considering the order it is asked to enforce, the domestic court should instead scrutinize the impact of the order. Relevant considerations may thus include the criteria that guide Canadian courts in crafting domestic orders, such as: Are the terms of the order clear and specific enough to ensure that the defendant will know what is expected from him or her? Is the order limited in its scope and did the originating court retain the power to issue further orders? Is the enforcement the least burdensome remedy for the Canadian justice system? Is the Canadian litigant exposed to unforeseen obligations? Are any third parties affected by the order? Will the use of judicial resources be consistent with what would be allowed for domestic litigants?
31 The evolution of the law of enforcement does not require me, at this point, to develop exhaustively the criteria a court should take into account. As cases come up, appropriate distinctions can be drawn. For present purposes, it is sufficient to underscore the need to incorporate the very flexibility that infuses equity. However, the conditions for recognition and enforcement can be expressed generally as follows: the judgment must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce. Comity does not require receiving courts to extend greater judicial assistance to foreign litigants than it does to its own litigants, and the discretion that underlies equitable orders can be exercised by Canadian courts when deciding whether or not to enforce one . [Emphasis added]
Court of Competent Jurisdiction
[22] A court in Ontario will enforce a foreign judgment if the foreign court had a real and substantial connection to the subject matter of the dispute or the parties. In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, the court stated at para. 37:
A real and substantial connection is the overriding factor in the determination of jurisdiction. The presence of more of the traditional indicia of jurisdiction (attornment, agreement to submit, residence and presence in the foreign jurisdiction) will serve to bolster the real and substantial connection to the action or parties. Although such a connection is an important factor, parties to an action continue to be free to select or accept the jurisdiction in which their dispute is to be resolved by attorning or agreeing to the jurisdiction of a foreign court.
[23] I find that the Florida Court had a real and substantial connection to the action given that the injunction was granted in a proceeding commenced pursuant to a Florida Statute and that Gideon is ordinarily resident in Florida.
Is the Temporary Injunction Final?
[24] In respect of the enforcement of a foreign money judgment, it must be shown that the judgment is final.
[25] Continental Casualty Co. v. Symons, 2015 ONSC 6394, involved the enforcement of a foreign money judgment. Glustein J. reviewed the caselaw and stated, at para. 20, that “… a decision is final when the court disposes of the issues and no jurisdiction remains in the court to abrogate or vary it, regardless of whether an appeal is pending”.
[26] In Pro Swing, at para. 29, Deschamps J. stated that:
… the finality requirement, which is indispensable, although more complex in the context of an equitable order than in that of a common law order, could be the object of further commentary. However, these topics need not be fully addressed in the present case. Revisiting the defences and defining the finality requirement in the context of equitable orders are better left for another day.
[27] In Bank of Mongolia v. Taskin, 2011 ONSC 6083 (Div. Ct.), aff’d 2012 ONCA 220, Hoy J., as she then was, stayed the enforcement of a foreign money judgment because of a pending hearing in the foreign jurisdiction where the judgment debtor sought relief. At para. 58, Hoy J. stated:
Pro Swing delineates the restrictions on the enforcement of non-monetary foreign judgments. It explains the requirement of finality and clarity, applicable to both monetary and non-monetary judgments (para. 10). It noted that the requirement of finality and clarity is based on the principles of judicial economy and the separateness of judicial systems (para. 91):
An order that is not final may be changed by the foreign court, with the result that the enforcing court finds itself enforcing something that is no longer an obligation in the foreign country. Finally, an enforcing court should not be obliged to re-litigate foreign disputes or use valuable resources to duplicate what would be best done in the originating jurisdiction. For these reasons, courts should decline to enforce foreign non-monetary orders that are not final and clear. (para. 92)
Finality demands that a foreign order establish an obligation that is complete and defined. The obligation need not be final in the sense of being the last possible step in the litigation process. Even obligations in debt may not be the last step; orders for interest and costs may often follow. But it must be final in the sense of being fixed and defined. The enforcing court cannot be asked to add or subtract from the obligation. The order must be complete and not in need of future elaboration (para. 95).
[28] The Temporary Injunction is subject to change by the Court in Florida as the hearing in respect of whether a Final Injunction should be issued is pending. Accordingly, I find that the Temporary Injunction is not final.
Does the Temporary Injunction Lack Clarity?
[29] In Pro Swing, McLachlin C.J.C. stated at paras. 96-97:
96 Clarity, which is closely related to finality, requires that an order be sufficiently unambiguous to be enforced. Just as the enforcing court cannot be asked to supplement the order, so it cannot be asked to clarify ambiguous terms in the order. The obligation to be enforced must clearly establish what is required of the judicial apparatus in the enforcing jurisdiction.
97 Clarity means that someone unfamiliar with the case must be able to ascertain what is required to meet the terms of the order.
[30] In my view, it is unclear whether the prohibitions found in the Temporary Injunction operate outside of Florida. The Temporary Injunction prohibits Gideon from committing any acts of exploitation against Carol, prohibits Gideon from having contact with Carol, and prohibits Gideon from coming within 500 feet of Carol’s home nor within 100 feet of Carol’s automobile. It is unclear whether these prohibitions apply outside of Florida, as the Temporary Injunction states that it is valid and enforceable in Florida. It appears that when the Temporary Injunction is intended to have impact outside of Florida, it specifically references matters outside of Florida, such as specific reference to bank accounts in Ontario, which it freezes and prohibits Gideon from accessing. Another area of uncertainty is whether the prohibition against coming within “500 feet of the home of the Vulnerable Adult” applies to Carol’s home in Toronto. The use of the word “the” suggests only one home is being referenced and given that the Temporary Injunction describes Carol’s home in Fort Myers, it is unclear that this prohibition applies to Carol’s home in Toronto as suggested by counsel for the Applicant.
Public Policy
[31] The defence of public policy prevents the enforcement of a foreign judgment which is contrary to the Canadian concept of justice: Beals, at para. 71. The public policy defence is not a remedy to be used lightly: Beals, at para. 75. It prohibits “… the enforcement of a foreign judgment that is founded on a law contrary to the fundamental morality of the Canadian legal system.”: Beals, at para. 72.
[32] In Ontario, under section 2 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30, a person is presumed capable. Consequently, a competent person has the “absolute right” to make a decision that any reasonable person would deem foolish: Starson v. Swayze, 2003 SCC 32, at para. 76.
[33] While I do not need to make a finding on this issue in this case, I question whether it would undermine the values inherent in the law of Ontario, as described, for this court to recognize and enforce this Temporary Injunction in Ontario. The Temporary Injunction freezes Carol’s assets held at TD Canada Trust in Ontario and effectively prohibits her from having contact with her husband in Ontario even though the presumption that Carol is capable has not been rebutted by a contrary finding by a court in Ontario or Florida. Further, given that the relief under the laws of Florida exceeds the relief available under the laws of Ontario, the request to enforce the Temporary Order raises the question, at para. 30 of Pro Swing, of whether “…the use of judicial resources [will] be consistent with what would be allowed for domestic litigants?”.
Decision
[34] The Applicant’s motion to recognize and enforce the Temporary Injunction is dismissed. Carol shall deliver her costs submissions by July 24, 2024. The Applicant shall deliver her costs submissions by July 31, 2024. If she wishes, Carol may deliver reply submission by August 7, 2024. Maximum of three pages for each submission excluding an outline of costs.
Mr. Justice M. D. Faieta Released: July 19, 2024