Capone v. Fotak

Capone v. Fotak

Service by FedEx in 2013 complied with the Hague Service Convention and Ontario law because postal channels include private courier service and a court order had authorized substituted service; the appellant attorned to Ontario jurisdiction by his participation in subsequent proceedings and cannot nullify the proceedings now; the motion judge correctly applied the RJR‑MacDonald stay test and reasonably exercised discretion to refuse the stay; and electronic service of appeal materials was permissible under the Court of Appeal's COVID‑19 practice direction.

Citation
2022 ONCA 430
Parties
Applicant / Respondent: Carmela Maria Capone; Respondent / Appellant: Zoran Fotak
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
31 May 2022
Procedural Posture
Civil (family Law) / Court of Appeal — Appeal and Cross Motion From Motion Judge Order
Outcome
Appeal and motions dismissed, with costs to the respondent
Legal Topics
Service of Process, Hague Service Convention, Substituted Service, Jurisdiction, Stay of Proceedings, Attornment, Costs, Electronic Service
Source Language
English
Family Law Civil Procedure Private International Law Service of Process Hague Service Convention Substituted Service Jurisdiction Stay of Proceedings +3 more

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Parties

Carmela Maria Capone

Applicant / Respondent

Zoran Fotak

Respondent / Appellant

Procedural Posture

Civil (family Law) / Court of Appeal — Appeal and Cross Motion From Motion Judge Order

Legal Issues

  1. 1 Whether service abroad in 2013 complied with the Hague Service Convention and Ontario law
  2. 2 Whether substituted service by FedEx constituted valid service
  3. 3 Whether the court had jurisdiction or the appellant attorned to jurisdiction by participation

Ratio Decidendi

Service by FedEx in 2013 complied with the Hague Service Convention and Ontario law because postal channels include private courier service and a court order had authorized substituted service; the appellant attorned to Ontario jurisdiction by his participation in subsequent proceedings and cannot nullify the proceedings now; the motion judge correctly applied the RJR‑MacDonald stay test and reasonably exercised discretion to refuse the stay; and electronic service of appeal materials was permissible under the Court of Appeal's COVID‑19 practice direction.

Court Disposition

Appeal and motions dismissed, with costs to the respondent

Orders

  • Appeal dismissed
  • Motion to stay prior orders dismissed