Anderson v. Bubb, 2020 ONCA 746

Court of Appeal for Ontario

Citation: Anderson v. Bubb, 2020 ONCA 746 Date: 2020-11-23 Docket: C68315

Judges: Tulloch, Miller and Paciocco JJ.A.

Between:

Karen Margaret Anderson Applicant (Respondent/Appellant by way of cross-appeal)

and

Warren Grant Bubb Respondent (Appellant/Respondent by way of cross-appeal)

Counsel: Marcel R. Banasinski, for the appellant/respondent by way of cross-appeal Jordan Welsh, for the respondent/appellant by way of cross-appeal

Heard and released orally: November 17, 2020 by video conference

On appeal from the order of Justice Douglas K. Gray of the Superior Court of Justice, dated March 12, 2020.

Reasons for Decision

1The appellant appeals from an order awarding retroactive and prospective spousal support to the respondent. The order did not expressly state whether the spousal support order was made under the Family Law Act, R.S.O. 1990, c. F.3 or the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

2The appellant argues that the spousal support order was made under the Divorce Act, and because the application judge severed the application from an order of divorce, the support order is therefore a nullity. We do not agree. We do not accept the appellant’s starting premise that the support order was made under the Divorce Act rather than the Family Law Act. Although the respondent’s application did not check the box indicating that relief was sought under the Family Law Act, the respondent expressly pleaded relief under the Family Law Act at para. 21 of the application, and the application judge clearly contemplated the operation of the Family Law Act at para. 31 of his reasons.

3The order was within the jurisdiction of the application judge under the Family Law Act and we accept it was made under that statute.

4The appellant argues in the alternative that the application judge lacked jurisdiction because the respondent had attorned to the divorce proceedings commenced by the appellant in Alabama. We do not agree. The application judge made a finding, on the record before him, that he had jurisdiction. The application judge’s reasons were cogent and the appellant has not identified any error that would permit us to disturb this finding.

5The appeal is dismissed. Costs are awarded to the respondent in the amount of $12,000, on a partial indemnity basis, all inclusive.