Court File and Parties
CITATION: Bryce v. Bryce, 2015 ONSC 3795
DIVISIONAL COURT FILE NO.: DC-643-00
DATE: 20150612
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Karen Bryce, Applicant/Appellant in Appeal
AND:
Wayne Bryce, Respondent/Respondent in Appeal
BEFORE: D.L. Corbett, Harvison Young and A. O’Marra JJ.
COUNSEL: Ms Bryce, for herself
Michael J. Polisuk, for Mr Bryce
HEARD at Oshawa: March 2, 2015
Endorsement
D.L. CORBETT J.:
[1] Ms Bryce appeals from the trial decision of Rogers J. in this family law case.
Preliminary Issue #1 – Parties Agree to Correct One Error in the Trial Decision
[2] There is one undisputed error in the trial decision. The trial judge determined that s.7 expenses for the children should be paid on a ratio of 70% and 30%. The order provides that Ms Bryce will pay the 70% share and Mr Bryce the 30% share. We corrected this error on the date of the hearing of the appeal and memorialized this correction in a handwritten endorsement on the back of the appeal book. We note that, even in cases where an appeal must proceed on other grounds, an error such as this one should be corrected on motion back to the trial judge. This was obviously just a slip – inverting “applicant” and “respondent” in one paragraph of the order – and should have been corrected below.
Preliminary Issue #2 – Jurisdiction
[3] Both sides took the position that jurisdiction for this appeal lies in the Divisional Court. The court raised the jurisdictional issue itself, at the start of the appeal. The court reserved on the issue of jurisdiction after hearing arguments on this point from the parties, and heard the rest of the appeal on the merits.
[4] On close review of the appellate jurisprudence, it is clear that jurisdiction over this appeal lies in the Court of Appeal and not this court. Therefore, for the reasons that follow, this appeal is dismissed without prejudice to any appeal that may be brought to the Court of Appeal.
Statutory Framework
[5] Section 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that
(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) … 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….
Judgment Under Appeal
[6] Rogers J. made the following dispositions related to property and support in her judgment:
(1) sale of the matrimonial home;
(2) equalization of property after net proceeds of sale of the matrimonial home are available for distribution;
(3) Mr Bryce to pay child support to Ms Bryce of $3,204 per month;
(4) Mr Bryce to pay spousal support to Ms Bryce of $3,700 per month;
(5) Mr Bryce to pay child support arrears to Ms Bryce of $22,252.
Analysis
[7] It had been thought that the thresholds in s.19(1)(a) of the Courts of Justice Act were cumulative: that is, that if the value of lump sum and annual periodic payments exceeded $50,000, in the aggregate, then the appeal lay to the Court of Appeal. This approach was disavowed by the Court of Appeal in Sepe v. Monteleone:
… [T]he section [s.19(1)(a)] is worded using the word “or” between the clauses. Applying the ordinary disjunctive meaning of that word allows a straightforward application of the section to any particular fact situation. One looks at each subsection individually to determine if the amount of the judgment… is under or over $25,000.[^1]
So the cap applies to each clause of s.19(1.2). However it is the entire “final order” and not the individual paragraphs of that order that is to be analysed.
[8] This analysis has been developed in Canady v. Tucci[^2] and Harte-Eichmanis v. Fernandes.[^3] In para. 13 of the latter case, the court summarized the law as follows:
When deciding whether the Divisional Court has jurisdiction, a beginning principle is that because the four subparagraphs are disjunctive each subparagraph is considered separately for the purpose of determining jurisdiction: Canady v. Tucci, 2009 ONCA 554, at para. 22. There are other principles that flow from the language of the rule, namely:
Where an amount is ordered to be paid, it is the amount of the payment ordered that is determinative: McGrath v. Woodrow (2001), 2001 24163 (ON CA), 52 O.R. (3d) 732 (C.A.) at para. 16
Where an amount is ordered paid – s.19(1.2)(a) or (b) – one looks at each subsection individually to determine if the amount of the judgment claim is under or over $50,000: Sepe at para. 7
Where a claim is dismissed – s.19(1.2)(b) or (c) – if the amount of a claim is not determined or is assessed at less than $50,000, jurisdiction is with the Divisional Court
All of the claims, whether allowed or dismissed and whether claimed by one party or more than one party, within each subparagraph are to be added together in order to apply s.19(1)(a): Canady, at para. 23. One looks at the total amount assessed by the trial judge for all parties.
[9] In the case before us, there are two orders for periodic payments: $3,204 per month for child support and $3,700 per month for spousal support. This results in annual payments for child support of $38,448 and for spousal support of $44,400. Total periodic support for the first twelve months following the judgment are $82,448, above the threshold in s.19(1.2)(b).
[10] Ms Bryce argued that she was not appealing the child support because it would only be in pay for a relatively short period. Thus the applicable amount was only the annual spousal support, which, at $44,400, is within the monetary jurisdiction of this court. Counsel for Mr Bryce agreed with this approach and both sides were anxious that the appeal proceed before us as scheduled.
[11] We are a statutory court. Jurisdiction cannot be conferred on us by agreement between the parties. Either this court has jurisdiction over this appeal or it does not. And we have concluded that it does not.
[12] The Court of Appeal has been clear on this issue. Jurisdiction is determined by the analysis set out in Harte-Eichmanis, above. It is not the value of the issue under appeal that determines jurisdiction. Recourse is not had to individual paragraphs of the judgment to determine jurisdiction. Under s.19(1.2)(b), the aggregate of all periodic payments in the judgment must be considered to determine jurisdiction.
The pivotal concept… is the amount of the judgment. It is not the amount claimed…. It is not the amount “involved” in the appeal or “in issue” in the appeal. Jurisdiction… turns on the amount of the payment ordered by the judgment sought to be appealed.[^4]
In this case the total is $82,448. Jurisdiction over this appeal lies in the Court of Appeal.
[13] In the circumstances, where both sides were in error on the question of jurisdiction, we do not consider it appropriate to award costs of the Divisional Court proceedings.
Substance of the Appeal
[14] Since we do not have jurisdiction over the appeal it is not appropriate for us to comment upon the merits even though we heard full argument.
[15] Appeal transferred to the Court of Appeal pursuant to s.110(1) of the Courts of Justice Act, without costs of proceedings before the Divisional Court.
D.L. Corbett J.
Harvison Young J.
A. O’Marra J.
RELEASED: June 12, 2015
[^1]: Sepe v. Monteleone (2006), 2006 1173 (ON CA), 78 O.R. (3d) 676 (C.A.), para. 7. This case was decided on the basis of the monetary cap before it was increased to $50,000.
[^2]: Canady v. Tucci, 2009 ONCA 554.
[^3]: Harte-Eichmanis v. Fernandes, 2012 ONCA 266.
[^4]: McGrath v. Woodrow (2001), 2001 24163 (ON CA), 52 OR (3d) 732, para. 16 (CA).