Hariram v. Hariram

[Indexed as: Hariram v. Hariram]

53 O.R. (3d) 131

[2001] O.J. No. 700

Docket No. C34394

Ontario Superior Court of Justice Divisional Court Abella, Borins and Sharpe JJ.A.

February 23, 2001

Family law--Support--Spousal support--Appeal--Application judge varied spousal support order by reducing it from $800 per month to $580 per month--Order was for periodic payments which did not amount to more than $25,000 in 12 months commencing on date first payment due under order--Appeal lay to Divisional Court under s. 19(1)(a)(ii) of Courts of Justice Act--Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(a)(ii).

Family law--Support--Spousal support--Variation--Application judge varied spousal support order by reducing it on basis of change in husband's income--Application judge provided for automatic annual increase in spousal support--Section 17 of Divorce Act does not give application judge power to make order providing for automatic annual increase in spousal support --Order for automatic annual increase set aside--Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17.

The husband brought an application to vary an order for the payment of spousal support in the amount of $800 per month on the ground of a material change in circumstances. The application judge found that the only factor that constituted a material change in circumstances was a 15 per cent reduction in the husband's income. He reduced the amount of monthly support by 15 per cent to $680. In addition, the application judge provided for the automatic annual increase in spousal support. The husband appealed to the Court of Appeal.

Held, the appeal should be allowed in part.

In Ontario, where an appeal is taken from a final judgment or order awarding either a lump sum for spousal support or periodic spousal support payments, ss. 6(1)(b) and 19(1)(a) of the Courts of Justice Act govern which appellate court has jurisdiction over the appeal. In this case, the appeal was from an order awarding periodic spousal support payments which amounted to not more than $25,000 in the 12 months commencing on the date the first payment was due under the order. Therefore, under s. 19(1)(a)(ii) of the Act, the appeal had to be taken to the Divisional Court. The panel of the Court of Appeal was reconstituted as a panel of the Divisional Court, and heard and decided the appeal in that capacity.

The application judge gave appropriate consideration to all relevant factors in reducing the spousal support award to $680 per month, and made no error in the exercise of his discretion.

Section 17 of the Divorce Act gave the application judge no power to make an order providing for an automatic annual increase in spousal support. That part of the judgment should be set aside.

APPEAL from a variation of a spousal support order.

Cases referred to Colletta v. Colletta (1992), 10 O.R. (3d) 464, 95 D.L.R. (4th) 298, 42 R.F.L. (3d) 227 (C.A.); Glegg v. Glegg, [1999] O.J. No. 4435 (S.C.J.); Potts v. Potts (1993), 13 O.R. (2d) 284, 47 R.F.L. (3d) 82 (Div. Ct.); Swift v. Swift (1992), 61 O.A.C. 225, 44 R.F.L. (3d) 250 (Div. Ct.); Venslovatis v. Venslovatis (1989), 36 O.A.C. 391 (Div. Ct.)

Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1) [as am. S.O. 1994, c. 12, s. 1], 19(1) [as am. S.O. 1994, c. 12, s. 6; S.O. 1996, c. 25, s. 1] Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 2(1), 17, 21 [as am.]

Susan Adam Metzler, for the appellant. Jack W. Hope, for the respondent.

The judgment of the court was delivered by

[1] BORINS J.A.:--This is an appeal by Ramnarain Hariram from a variation of a final spousal support order under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In that order, Farley J. varied the monthly support that Mr. Hariram was required to pay his former wife, Anjanee Hariram, from $800 to $680, resulting in an annual support payment of $8,160. This appeal raises two issues: (1) the jurisdiction of this court to hear the appeal, and (2) the correctness of the decision from which the appeal has been taken.

[2] With regard to the correctness of Farley J.'s decision, Mr. Hariram raises several grounds of appeal. He appeals from the amount of the variation and from the date on which the variation was ordered to be effective. He further appeals costs of $1,000 which he was ordered to pay the respondent. And he appeals from the following paragraph of the formal judgment:

2. THIS COURT ORDERS that the $680.00 monthly support figure is to be adjusted on an annual calendar basis, effective April 30th, of the following year, to be increased by $17.00 per month for every $1,000.00 per year increase in gross income of the Husband over $51,700.00, with copies of the Applicant's Tax Return to be provided to the Respondent at the time of filing same.

Jurisdiction

[3] The issue of whether this court has jurisdiction to hear the appeal was raised by the court. Given that Farley J.'s order is a final order of a judge of the Superior Court of Justice, and that it is an order for periodic payments which do not amount to more than $25,000 in the 12 months commencing on the date the first payment is due under the order, the court expressed the view that s. 19(1)(a)(ii) of the Courts of Justice Act, R.S.O. 1990, c. C.43 required that the appeal be taken to the Divisional Court. At the hearing before the panel, this court asked for submissions from counsel on this issue.

[4] Understandably, counsel were taken by surprise when the jurisdictional issue was raised. In the short time that they were given to respond to the issue, counsel were unable to provide the court with assistance. However, counsel requested that, in the event the court were to come to the conclusion that the appeal should have been taken to the Divisional Court, the court decide the appeal as a panel of that court.

[5] For the reasons that follow, this appeal lies to the Divisional Court. The Associate Chief Justice of the Superior Court of Justice has reconstituted the panel as a panel of the Divisional Court. It is in this capacity that we heard and have decided the appeal.

[6] It is helpful to reproduce the relevant legislation. The starting point is ss. 6(1) and 19(1)(a) of the Courts of Justice Act, which define the jurisdiction of the Court of Appeal and the Divisional Court, respectively. The relevant portions of these provisions state:

6(1) An appeal lies to the Court of Appeal from,

(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act.

19(1) An appeal lies to the Divisional Court from,

(a) a final order of a judge of the Superior Court of Justice,

(i) for a single payment of not more than $25,000, exclusive of costs,

(ii) for periodic payments that amount to not more than $25,000, exclusive of costs, in the twelve months commencing on the date the first payment is due under the order;

[7] Section 21 of the Divorce Act governs appeals from judgments or orders made by a court under that Act. Section 21(1) states:

21(1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act.

Subsections (2) and (3), which contain restrictions on appeals from a divorce or an order made under the Act, do not apply to the circumstances of this appeal. Section 21(6) states:

21(6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering judgment or making the order being appealed.

The term "appellate court" in s. 21(1) is defined as follows in s. 2(1):

2(1) In this Act,

"appellate court", in respect of an appeal from a court, means the court exercising appellate jurisdiction with respect to that appeal;

[8] Although the general right of appeal is granted by s. 21(1) of the Divorce Act, s. 21(6) of the Act delegates the determination of the appropriate appellate court and procedure to the provinces. In Ontario, where an appeal is taken from a final judgment or order awarding either a lump sum for spousal support or periodic spousal support payments, ss. 6(1)(b) and 19(1)(a) of the Courts of Justice Act govern which appellate court has jurisdiction over the appeal. Jurisdiction is determined by the amount of the payment ordered by the court appealed from, as stipulated by s. 19(1)(a)(i) and (ii). In this case, the appeal is from an order awarding periodic spousal support payments which aggregate $8,160, in the 12- month period from the date on which the first payment is due. Therefore, following s. 19(1)(a)(ii), the appeal must be taken to the Divisional Court. It is highly unlikely that the effect of para. 2 of Farley J.'s order, which provides for monthly increases to the award in certain circumstances, when combined with the annual payment of $8,160, would ever result in periodic payments exceeding $25,000 in a 12-month period. In any event, as I will explain, he lacked the jurisdiction to make this order.

[9] Our research has not located any case in which the precise jurisdictional issue raised by this appeal has been decided. However, there are several cases which provide support for the above analysis. In Swift v. Swift (1992), 61 O.A.C. 225, 44 R.F.L. (3d) 250 (Div. Ct.) it was held that an appeal was properly taken to the Divisional Court under s. 19(1)(a) (iv) of the Courts of Justice Act. That section provides:

19(1) An appeal lies to the Divisional Court from,

(a) a final order of a judge of the Superior Court of

Justice,

(iv) dismissing a claim for an amount that is more than the amount set out in subclause (i) or (ii) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in subclause (i) or (ii);

In that case, a trial judge refused to vary a spousal support order by increasing it from $600 to $1,200 per month. On behalf of a panel of the Divisional Court, White J. expressly held that the appeal did not lie to the Court of Appeal. See, also, Colletta v. Colletta (1992), 10 O.R. (3d) 464 at p. 467, 95 D.L.R. (4th) 298 (C.A.) per Finlayson J.A.; Venslovatis v. Venslovatis (1989), 36 O.A.C. 391 (Div. Ct.); Potts v. Potts (1993), 13 O.R. (2d) 284, 47 R.F.L. (3d) 82 (Div. Ct.); Glegg v. Glegg, [1999] O.J. No. 4435 (S.C.J.).

The Appeal

[10] On May 14, 1997, Benotto J. awarded Mrs. Hariram $850 monthly for her support. She ordered that the amount of support and Mr. Hariram's liability to pay it were to be reviewed in May 1998. In addition, she ordered that Mr. Hariram pay child support. The review of Benotto J.'s order was conducted on June 4, 1998, by Wilson J., who reduced the amount of spousal support to $800 monthly commencing May 1, 1998, but made no order for a further review. An appeal from the order of Wilson J. was dismissed by this court on March 5, 1999.

[11] On September 16, 1999, Mr. Hariram applied for an order to vary the amount of the spousal support that Wilson J. ordered him to pay, on the ground that there had been a change in material circumstances since the order was made. The application judge, Farley J., considered a number of factors. He concluded that the only factor that constituted a change in material circumstances was a 15 per cent reduction in the appellant's income which occurred in August, 1999. He gave effect to this change in material circumstances by reducing the monthly amount of spousal support by 15 per cent, from $800 to $680, and ordered that the support be paid each month effective June 1, 2000.

[12] In addition, the application judge provided for the automatic annual increase in spousal support. This provision is contained in para. 2 of the formal judgment which I reproduced earlier in these reasons. It appears that Farley J. included this provision because he was of the view that it would be "unreasonable and very costly to these parties to have them come back to Court every time there were a change in income levels". We were advised by counsel for the appellant and the respondent that they had not requested such a provision. Nor had they been given the opportunity to make submissions concerning the application judge's power to make such an order.

[13] Counsel for the appellant attacked the spousal support order on two grounds. She submitted that because the application was in the nature of a "review application", in order for the appellant to be relieved from paying spousal support, or to have its amount reduced, there was no requirement that he establish a change in material circumstances since the order of Wilson J. She further submitted that even if the appellant was required to establish a change in material circumstances, the application judge failed to give appropriate consideration to all relevant factors.

[14] I would not give effect to either ground. As the notice of application stated, the appellant's application requested a variation of Wilson J.'s spousal support order. Moreover, unlike the spousal support order that Benotto J. made, Wilson J.'s order did not provide for a review of spousal support. It is apparent from Farley J.'s reasons that he did not consider that he was adjudicating a "review application". Rather, this was an application for a variation of an earlier spousal support order. Nor would I interfere with the application judge's conclusion that the only material change in circumstances was the reduction in the appellant's income. In my view, in reaching this conclusion Farley J. gave appropriate consideration to all the relevant factors, including the new living arrangement for the children, two of whom had moved in with the appellant.

[15] In addition, counsel for the appellant submitted that the application judge should have ordered that the reduction in spousal support be effective from August 1999, when the appellant's income was reduced, and not from June 1, 2000. In my view, this issue was within the discretion of the application judge, and the appellant has not satisfied me that the application judge erred in the exercise of that discretion.

[16] The appellant has also appealed from the order that he pay the respondent's costs of the application that were fixed at $1,000. Costs are always in the discretion of the court. The appellant did not provide the court with any substantial reason to interfere with the application judge's exercise of his discretion in this regard.

[17] That said, I agree with the appellant's submission, which was not seriously challenged by the respondent's counsel, that even if such relief was requested the application judge was given no power by s. 17 of the Divorce Act to make an order which provided for an automatic annual increase in spousal support. Therefore, para. 2 of his judgment cannot stand.

[18] Accordingly, the appeal is allowed to the extent only of setting aside para. 2 of the formal judgment. The balance of the appeal is dismissed with costs.

Appeal allowed in part.