COURT OF APPEAL FOR ONTARIO
MacPherson, Sharpe and Lauwers JJ.A.
BETWEEN
Halle Paige Noah
Applicant (Respondent)
and
Johnny Paul Bouchard
Respondent (Appellant)
Counsel: Richard Guy, for the appellant Michael Ruhl, for the respondent Linda Feldman of the Office of the Children’s Lawyer, for the children
Heard: May 29, 2013
On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated April 5, 2012.
By the Court:
1The appellant Johnny Bouchard appeals from the order of the Superior Court of Justice dated April 5, 2012, dismissing the appellant’s claim for custody of the parties’ two children, Tyler (age 10) and Nicholas (age 8). The application judge ordered that the custody and access arrangements in existence at the time of trial pursuant to the earlier order of Judge MacKenzie of the Ontario Court of Justice should continue and that a review of the orders in respect of custody and child support should take place after December 31, 2012. He subsequently conducted that review and again declined to alter the arrangements as ordered by the Ontario Court of Justice.
2The appellant contends that the order under appeal in effect varied the order of the Ontario Court of Justice made under s. 29 of the Children’s Law Reform Act, and that the Superior Court of Justice had no jurisdiction to make the order.
3We accept this submission. The respondent should have brought a motion to change the Order of Judge MacKenzie of the Ontario Court of Justice and a separate application regarding her claims for equitable relief in the Superior Court of Justice. She ought to have then requested a consolidation and transfer of the lower court proceeding to the Superior Court.
4The Children’s Lawyer counters this analysis with the assertion that this court has jurisdiction, and should exercise it, to permit the consolidation and transfer of the proceeding to the Superior Court of Justice pursuant to ss. 110(1) and 134(1) of the Courts of Justice Act :
110(1) Where a proceeding is brought or taken before the wrong court… it may be transferred … to the proper court….
134(1) Unless otherwise provided, a court to which an appeal is taken may,
(c) make any other order or decision that is considered just.
5We do not accept this submission. The wrong court in this case is the Superior Court of Justice because of the existing proceeding and Order in the Ontario Court of Justice. Section 110(1) would permit this court to transfer the proceeding back to the Ontario Court of Justice. However, this does not accomplish the goal sought by the Children’s Lawyer, namely, a disposition on the merits of the appeal from the decision of the Superior Court of Justice. In oral argument, counsel for the children candidly admitted that, in order to be successful in achieving this objective, s. 110(1) would have to be interpreted to permit a double transfer, first from the Superior Court to the Ontario Court and then from the Ontario Court back to the Superior Court. In our view, the straightforward language of s. 110(1) does not support such a convoluted result.
6Having said that, we observe that after Judge MacKenzie’s order was made in the Ontario Court of Justice, both parties mistakenly initiated proceedings in the Superior Court of Justice relating to the custody of Tyler and Nicholas. This ultimately led to the application judge’s comprehensive reasons dealing with this issue. As the matter was fully argued before us, we have decided to provide comments on the substantive issues raised by the appeal for the potential benefit of these parties and other parties and judges involved in similar proceedings.
7In addition to the jurisdictional issue, the appellant challenged the trial judge’s decision on two grounds.
8First, the appellant contends that the trial judge did not explicitly consider the factors in s. 24(2) of the Children’s Law Reform Act.
9We disagree. The trial judge reviewed the evidence in considerable detail. While he did not specifically set out the factors in s. 24(2), he clearly considered the evidence with respect to the children’s circumstances and needs, including the factors listed in that provision.
10Second, the appellant submits that the trial judge did not have the authority to order a review with respect to custody and support. The challenged portion of the trial judge’s Order is:
- There shall be a review of the issue of custody, access and child support after December 31st, 2012; either party may bring a Motion after that date, returnable before me by arrangement with the trial coordinator at Milton; each party shall file an Affidavit on which he or she may be cross-examined at the hearing. In her Affidavit the Applicant shall disclose the school attendance records for the children to the date of the review, and any report cards for them. Any absences from school for more than two days must be supported by a medical certificate. The Respondent in his Affidavit shall disclose the efforts he has made to secure employment, and in particular at the highest rate or pay that he can secure.
11We do not accept this submission. The trial judge had genuine concerns about the children’s school attendance when they resided with their mother pursuant to the separation agreement and the father’s efforts to find employment in Sudbury. It was reasonable for him to order the parties to return to court several months later so that these issues could be reviewed. We note, with approval, that similar orders have been made by several superior court judges: see, for example, Andrade v. El Kadri, [2009] O.J. No. 2423 at para. 47; Filaber v. Filaber, 2008 ONSC 57449, [2008] O.J. No. 4449 at para. 58; and Johnstone v. Locke, [2012] O.J. No. 406 at para. 128.
12Finally, we observe that the Office of the Children’s Lawyer submitted fresh evidence about recent communication between personnel in the Office and the two children. Significantly, it appears that the younger child, Nicholas (now age 9) has a clear desire to live with his father in Sudbury. Although this is important information, standing alone it would not be sufficient to justify a change the order at this time.
13The appeal is allowed and the order is set aside. The issues of custody, access and support relating to Tyler and Nicholas remain, at this juncture, in the Ontario Court of Justice. The Order of Judge MacKenzie continues to govern these issues.
14Since both parties mistakenly brought proceedings in the Superior Court of Justice, each party should bear its own costs of the appeal. The Office of the Children’s Lawyer should neither pay nor receive costs.
Released: June 11, 2013 (“J.C.M.”)
“J.C. MacPherson J.A.”
“Robert J. Sharpe J.A.”
“P. Lauwers J.A.”