CITATION: Pustai v. Pustai, 2013 ONSC 6894

DIVISIONAL COURT FILE NO.: 447/13

DATE: 20131112

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN R.S.J., SACHS AND MACKINNON JJ.

BETWEEN:

SCOTT TIMOTHY PUSTAI

Applicant

(Respondent in Appeal)

– and –

CHRISTINE MARIE PUSTAI

Respondent

(Appellant in Appeal)

William Abbott, for the Respondent in Appeal

Michael H. Tweyman, for the Appellant in Appeal

HEARD at Toronto: November 5, 2013

MACKINNON J.

[1] This is an appeal from a final Order of a judge of the Superior Court of Justice dated December 7, 2012, terminating the respondent’s obligation pay spousal support to the appellant, obligating the appellant to pay child support and requiring the respondent to purchase a motor vehicle for the appellant. In her Notice of Appeal, the appellant sets out sections 19(1)(a) and 19(1.2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as the basis for this Court’s jurisdiction. After receiving the submissions of counsel on the issue of jurisdiction, we determined that the Divisional Court does not have jurisdiction to hear this appeal and ordered that the appeal be transferred to the Court of Appeal with reasons to follow. These reasons are now provided.

Procedural History

[2] The parties consented to a final separation Order dated February 21, 2008. That Order required Mr. Pustai to pay $3,000 per month spousal support. The Order also provided “[t]here shall be no termination date for spousal support. Either party may ask for a review of the quantum of support upon a material change in circumstances.” Although the Order did not refer to it, the parties had signed Minutes of Settlement dated January 16, 2008, one provision of which required Mr. Pustai to provide a new motor vehicle for Ms. Pustai “as agreed to between the parties.”

[3] Some eight months after the February 2008 Order, Mr. Pustai brought a motion seeking to terminate spousal support. His motion was dismissed. He appealed to the Court of Appeal where his appeal was dismissed in March 2010: Pustai v. Pustai, 2010 ONCA 251.

[4] The present motion to change was brought by Mr. Pustai in October 2010. Following a three day trial of the issues, a final Order was made on December 7, 2012, terminating his obligation to pay spousal support effective June 1, 2013. The December 2012 Order also required Ms. Pustai to pay child support of $505 per month and a percentage of the children’s special expenses, and required Mr. Pustai to purchase a new motor vehicle for Ms. Pustai within 30 days.

The Courts of Justice Act

[5] The relevant provisions of the Courts of Justice Act are sections 6(1)(b) and (2), and 19(1)(a) and (1.2):

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;

(2) The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal.

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

(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect of a final order,

(a) for a single payment of not more than $50,000, exclusive of costs;

(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;

(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or

(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) 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 clause (a) or (b).

[6] Section 19 sets out three exceptions to the general rule that a final order of a judge of the Superior Court of Justice lies to the Court of Appeal. All of the exceptions under section 19(1)(a) relate to the payment of money, whether by ordering it to be paid or by dismissing a claim for its payment.

Analysis

[7] In the case at hand, the Order under appeal does not order payment of any amount of spousal support, rather it provides that payments required under the existing consent order shall terminate on a fixed date. Counsel for the appellant agreed that while the appellant had ticked off a box in her Form 15B, Response to Motion to Change, asking to change the spousal support order “TBD”, this claim did not proceed and was not considered by the Superior Court judge. In other words, in making the order that he did the trial judge was not dismissing a claim for spousal support.

[8] As already noted, the Court of Appeal heard the appeal from the Superior Court judge’s final Order dismissing Mr. Pustai’s first motion to change the consent Order. The court did not comment on its jurisdiction. There are also cases where the Divisional Court has accepted jurisdiction over appeals of orders terminating or refusing to terminate spousal support, also without discussion of its jurisdiction. Two such cases are Levinson v. Levinson, [2006] O.J. No. 2566 (Ont. S.C. (Div. Ct.)) and Taillefer v. Taillefer, 2013 ONSC 6105 (Div. Ct.).

[9] In Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 1st ed. (Markham, Ont.: LexisNexis Canada , 2010), the authors state at page 784:

The fact that the scheme [in s. 19(1)(a)] is confined to orders for the payment of money can lead to some anomalous situations when a comparison is made between some the appeals that do lie to the Court of Appeal with those that lie to the Divisional Court. The scheme has an inevitable arbitrary effect. Having noted this, we suggest that the system works best when courts apply the plain meaning to the terms of section 19(1.2) to each case that arises rather than seeking to apply policy considerations nowhere stated in the legislation in order to “rationalize” its application. The difficulty with the latter approach is that it removes the greater predictability of a plain meaning application. It is well-established that rules delineating jurisdiction should be as clear as possible and creative interpretation stands in the way of this goal.

[10] We agree with this view. There are also two decisions of the Court of Appeal in the civil context that confirm our view that section 19 should be given a strict reading.

[11] In McGrath v. Woodrow (2001), 2001 24163 (ON CA), 52 O.R. (3d) 732 (C.A.), the court held that the relevant “amount” for determining jurisdiction under s. 19(1)(a) is the amount given in the order under appeal, not the amount in issue:

[16] The pivotal concept in subclause 19(1) (a) (i) is the amount of the judgment. It is not the amount claimed in the action or counterclaim. It is not the amount "involved" in the appeal or "in issue" in the appeal. Jurisdiction under subclause 19(1) (a) (i) turns on the amount of the payment ordered by the judgment sought to be appealed. (Emphasis added)

[12] McGrath was applied in Canady v. Tucci, 2009 ONCA 554, 97 O.R. (3d) 145, where the Court of Appeal held that the Divisional Court did not have jurisdiction under section 19(1)(a) because the judgment under appeal merely provided that the action was dismissed. The court went on to add, at para. 13, that “[n]either subparagraphs (a) nor (b) applies because the judgment did not order payment of any money sum,” and at para 23:

[23] The judgment records the claims allowed and the claims that have been dismissed and is the key document to which reference must be made in determining the applicability or not of s. 19 of the Act. The subsections of s. 19 are, as this court noted in Sepe, disjunctive and they must be read and interpreted in that way. However, within each subsection, all of the claims whether allowed or dismissed and whether claimed by one party or more than one party are to be added together in order to apply s. 19(1) (a).

[13] While our decision to transfer the case to the Court of Appeal did not turn on this point we note that the order required the provision of a car but did not specify a value. It may be that after determining the value of the car, the amount would then exceed the monetary jurisdiction of Divisional Court.

Conclusion

[14] For these reasons, we order that the appeal be transferred to the Court of Appeal for Ontario pursuant to sections 6(2) and 110(1) of the Courts of Justice Act.

J. MACKINNON

THEN R.S.J.

SACHS J.

Date of Reasons for Judgment: November 5, 2013

Date of Release: November 12, 2013

CITATION: Pustai v. Pustai, 2013 ONSC 6894

DIVISIONAL COURT FILE NO.: 447/13

DATE: 20131112

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN R.S.J., SACHS AND MACKINNON JJ.

BETWEEN:

SCOTT TIMOTHY PUSTAI

Applicant

(Respondent in Appeal)

– and –

CHRISTINE MARIE PUSTAI

Respondent

(Appellant in Appeal)

REASONS FOR JUDGMENT

MACKINNON J.

Date of Reasons for Judgment: November 5, 2013

Date of Release: November 12, 2013