DIVISIONAL COURT FILE NO.: 1953
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Pardu, Aston, Linhares De Sousa JJ.
BETWEEN:
Katherine-Marie Joanne Houle
Applicant
(Appellant)
– and –
Steven Christopher Trottier
Respondent
(Respondent)
Dawn Melville, for the Appellant
No one appearing for the Respondent
HEARD at London: November 19, 2012
aston j.
1Katherine-Marie Houle appeals from the final order of Nolan J. (the “Hearing Judge”) dated February 2, 2012 which dismissed her application for child support on the basis that the Superior Court of Justice lacked jurisdiction to hear it.
2At the conclusion of the hearing of the appeal November 19th, we allowed the appeal and remitted the application back to the Superior Court of Justice at Windsor for determination on the merits. We indicated that reasons would follow. These are those reasons.
Factual Background
[3]
Factual Background
The parties were married in 1998 and separated a year later. They have one child, Braydon, now 14 years old. On June 8, 2000, the parties entered into a Separation Agreement which included provisions for custody in favour of the mother and for child support of $100 per week. The respondent father paid that amount without variation for a number of years. He then applied to reduce his child support obligation because of a reduction in his income. His application was heard in the Ontario Court of Justice and on October 6, 2005 that court reduced his child support obligation from $100 per week to $213 per month.
4In the meantime, the parties had been divorced by an order of the Superior Court of Justice dated July 4, 2005. The divorce had proceeded on an uncontested basis with no claims for corollary relief.
5On April 7, 2011, Ms. Houle commenced the current application in the Superior Court of Justice, seeking child support as corollary relief under sections 15 and 15.1 of the Divorce Act. Mr. Trottier did not respond to the application. It then proceeded on an unopposed basis. The Hearing Judge dismissed the application, on the basis that the Superior Court of Justice did not have jurisdiction to hear it, without prejudice to the appellant’s right to proceed in the Ontario Court of Justice with an application or motion to vary the earlier child support order made in that court under the provincial legislation, the Family Law Act.
6Ms. Houle’s application under the Divorce Act seeks child support retroactively to January 1, 2006. She claims both the table amount and an amount for special expenses under s. 7 of the federal child support guidelines. She also requests, as an incident of child support, that the respondent father be ordered to maintain health care coverage and life insurance security, as provided in the original Separation Agreement.
Analysis and Conclusion
[7]
Analysis and Conclusion
It is well settled that a former spouse may make an application for corollary relief under the Divorce Act subsequent to a divorce order that was silent on any issues of corollary relief. Moreover, there is no limitation in the Divorce Act, which prevents or restricts former spouses from making an application for corollary relief on the basis that there is a prior order under applicable provincial legislation.
8The Hearing Judge erred in law in two respects: (1) she framed the issue as a case involving competing jurisdiction between a provincial court and a federal court; and (2) she failed to appreciate that an application for corollary relief under the Divorce Act is not an application to vary an order under the Family Law Act.
9In paragraph 8 of her Reasons, the trial judge states that s. 4 of the Divorce Act deals with concurrent proceedings in the Ontario Court of Justice and the Superior Court of Justice. That is incorrect. Section 4 of the Divorce Act addresses which province has jurisdiction when claims for corollary relief are advanced in the Superior Courts of two different provinces. Only s. 4(1) is applicable in this case. That subsection clearly provides that the Ms. Houle is entitled to bring her application in Ontario as a former spouse ordinarily resident in Ontario at the time she brought her application for corollary relief.
10The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court’s child support order under s.37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s.15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.
11The Hearing Judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her Reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the Ontario Court of Justice under the Family Law Act. A request to change the order already granted in the Ontario Court of Justice can only be advanced in that court. However, the Hearing Judge should have distinguished the cases she refers to on the basis that the parties in those cases were never married to one another. They did not have an option of proceeding under the Divorce Act and were not seeking any order under the federal legislation. They were attempting to vary an order made under the provincial legislation. The fact that an order made under the Divorce Act may be different from an order previously made under the provincial legislation does not somehow convert an application for corollary relief under that Act into an application to vary the prior order under the provincial legislation.
12In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the Ontario Court of Justice under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the Separation Agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.
13An order under the Divorce Act does not vary the order under the provincial legislation. Rather, it supplants and supersedes the order under the provincial statute. See Pantry v. Pantry 1986 2537 (ON CA), [1986] O.J. No. 2347 (Ont. CA) at para. 7.
14Though the principles applied to the determination of child support under both Ontario’s Family Law Act and the federal Divorce Act are for all practical purposes indistinguishable, it is important to keep in mind that there are differences in the statutory regimes. For example, the statutory definition of a dependent child is significantly different. It may well be that a child is qualified as a dependant for child support purposes under the Divorce Act when such entitlement does not exist under the more narrow definition in the provincial legislation. Similarly, and in particular reference to this case, s.34(2) of the Family Law Act expressly restricts the Ontario Court of Justice from making an order “requiring a spouse who has a policy of life insurance as defined under the Insurance Act to designate the other spouse or child as the beneficiary irrevocably”. There is no similar jurisdictional restriction under the Divorce Act and courts have made such orders as corollary relief under that statute. See for example Laczko v. Laczko, [1999] O.J. No. 2577. The Hearing Judge incorrectly concluded at paragraph 27 of her Reasons that the appellant is not seeking to have this court determine any issues that cannot be adjudicated in the Ontario Court of Justice. Her claim in relation to the life insurance policy is just such a provision. The appellant should not be restricted from seeking relief under the remedial statute most amenable to her claim.
15Finally, it is not relevant that the appellant failed to assert a claim for corollary relief under the Divorce Act at the time of the divorce. An application for corollary relief is a stand-alone application that can be made any time on or after the dissolution of the marriage. It is an application that can be made by a spouse or former spouse.
16Accordingly, the appeal is allowed. The dismissal of the motion for summary judgment is set aside and the application is remitted to the Superior Court of Justice at Windsor for a determination on the merits.
Aston J.
Pardu J.
Linhares De Sousa J.
Released: December 4, 2012
CITATION: Houle v. Trottier, 2013 ONSC 6661
DIVISIONAL COURT FILE NO.: 1953
DATE: 20121204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Pardu, Aston, Linhares De Sousa JJ.
BETWEEN:
Katherine-Marie Joanne Houle
Applicant
(Appellant)
– and –
Steven Christopher Trottier
Respondent
(Respondent)
REASONS FOR JUDGMENT
Aston J.
Released: December 4, 2012