



COURT OF APPEAL FOR ONTARIO

CITATION: Capone v. Fotak, 2021 ONCA 144

DATE: 20210305

DOCKET: M52116 (C68624)

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

Carmela
    Maria Capone

Applicant (Respondent)

and

Zoran Fotak

Respondent (Appellant)

Harold Niman and Jen-Yii Liew, for the
    applicant

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

Heard and released orally: March 3, 2021 by
    video conference

On
    appeal from the orders of Diamond J. of the Superior Court of Justice, dated
    September 4, 2020 and October 15, 2020 with reasons reported at 2020 ONSC 5278.

REASONS FOR DECISION

[1]

The applicant, Carmela Maria Capone, moves to
    quash the appeal of the respondent, Zoran Fotak, from orders dated September 4
    and October 15, 2020, made in family law proceedings that have been ongoing
    since 2013.

[2]

Over the course of the proceedings, numerous
    orders have been made. Ms. Capone alleges that Mr. Fotak is in breach of
    provisions of ten of those orders.

[3]

Mr. Fotak brought a motion, most recently
    amended in August 2020, to challenge the jurisdiction of the Superior Court. Ms.
    Capone brought a cross-motion that Mr. Fotaks motion not be heard because he
    was in violation of court orders.

[4]

On September 4, 2020, the motion judge ordered
    that Mr. Fotak would have the opportunity to move for a stay of the ten court
    orders and that if he was successful on the stay motion, he would be permitted
    to proceed with his jurisdictional challenge.

[5]

On October 15, 2020, after a case conference
    held to settle the September 4, 2020 order, the motion judge clarified that he
    had not rendered a decision on the merits of the jurisdictional challenge and had
    not dismissed it. He had simply ordered that Mr. Fotak bring a stay motion as a
    condition of his jurisdictional challenge being heard. He specifically stated
    that he had made no determination of the effect, on the jurisdictional
    challenge, of any dismissal of the stay motion.

[6]

The orders of the motion judge are interlocutory,
    and no appeal lies from them to this court. They do not determine any
    substantive claim or defence: see
Hendrickson v. Kallio
, [1932] O.R.
    675 (C.A.). They do not determine, one way or the other, the jurisdictional
    challenge and therefore are not final orders within the meaning of
Hopkins
    v. Kay,
2014 ONCA 514
.

[7]

The appeal is therefore quashed.

[8]

As agreed to by the parties, Mr. Fotak shall pay
    costs to Ms. Capone in the sum of $10,000, inclusive of disbursements and
    applicable taxes.

Fairburn
    A.C.J.O.

B.W.
    Miller J.A.

B.
    Zarnett J.A.


