Court File and Parties
CITATION: Buhlmann v. Buhlmann-Miyake, 2024 ONSC 5265
OSHAWA DIVISIONAL COURT FILE NO.: DC-24-1654
DATE: 20240924
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Eiko Buhlmann, Applicant/Respondent
AND:
Guido Buhlmann-Miyake, Respondent/Appellant
BEFORE: The Hon. Mr. Justice R.E. Charney
COUNSEL: Brian Ludmer, Counsel for the Applicant/Respondent in Appeal
Guido Buhlmann-Miyake, Self-Represented, Respondent/Appellant
HEARD: In Writing
Endorsement
[1] The Appellant has filed a Notice of Appeal to the Divisional Court from the final orders of MacPherson J. date June 28, 2024. The Notice of Appeal is dated July 27, 2024.
[2] The Appellant has also brought a motion in the Divisional Court to stay the Order of MacPherson J.
[3] In my direction to the parties dated July 30, 2024, I directed the parties “to advise whether there is any dispute regarding the jurisdiction of the Divisional Court to hear this appeal.”.
[4] On August 12, 2024, counsel for the Respondent in the Appeal advised the Court that the Respondent in Appeal took the position that the Divisional Court did not have jurisdiction over the appeal since the final orders of MacPherson J. were made in relation to parenting time, child support and divorce under the Divorce Act, and therefore does not fall within the jurisdiction of the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] The relevant parts of s. 19(1) of the Courts of Justice Act provide:
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);
(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario;
(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] In light of this objection, on August 20, 2024, I invited the parties to file submissions to address the jurisdictional issues raised by the Respondent in Appeal, and directed them to consider this Courts decisions in C.C. v. J.B., 2021 ONSC 2174, at paras. 8 -10; Mattina v. Mattina, 2018 ONSC 1569; and, Young v. Vanleer, 2020 ONSC 3606.
[7] The parties’ respective positions were received.
[8] Since the trial judge severed the divorce from the corollary relief, the Appellant argues that no federal legislation or regulations were involved in the Order granted and under appeal.
[9] The Respondent in Appeal takes the position that the final order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). The proceedings were brought in the context of divorce proceedings, and while divorce was severed from the corollary relief, the corollary relief dealt with by the judge included all of the other issues raised in the divorce proceedings: mobility, parenting and support. Since the parents were married, these orders were all made under the Divorce Act.
[10] A review of the decision of the trial judge supports the position of the Respondent in Appeal.
[11] In resolving the parties dispute in relation to “Decision-Making, Parenting Time and Mobility”, MacPherson J. expressly references s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) when considering the best interests of the child at paras. 182 and 183 of his decision. Similarly, he relied on the definition of a “child of the marriage” in s. 2 of the Divorce Act at para. 229 of his decision.
[12] With regard to the issue of the Appellant’s intention to move the children to Switzerland, MacPherson J.’s decision, at paras. 243-244, relies on s. 16.9 of the Divorce Act. MacPherson J. declined to authorize a relocation of the children, and this is one of the Appellant’s grounds of appeal.
[13] Financial issues such as spousal support and child support were also dealt with pursuant to the applicable sections of the Divorce Act: see paras. 260 and 272-276.
[14] While MacPherson J. does make reference to the Family Law Act and the Children’s Law Reform Act as interpretive aids, it is clear from his decision that his orders stemmed from the provisions of the Divorce Act.
[15] Moreover, as the Respondent in Appeal notes, once divorce proceedings are commenced, the provisions of the Divorce Act govern. Any claims relating to decision making, parenting time, mobility and support are dealt with under the Divorce Act and can be addressed even if the divorce is severed from the corollary relief and dealt with at a later date. See Bridgeman v. Balfour, 2012 ONSC 6583, at paras. 9-10:
The Parliament of Canada has been granted the power to deal with divorce pursuant to section 91(26) of the Constitution Act, 1867. This power allows Parliament to legislate respecting the issues of custody and access when these matters are raised in the context of divorce. The final order of Lafrenière, J. dated February 16, 2006 as it related to the custody and access issues was not made pursuant to the CLRA, but rather pursuant to section 16 of the Divorce Act, in the context of a divorce proceeding in which the Applicant also requested corollary relief. This is apparent from paragraph 9 of the order, which refers to the divorce being dealt with at a later date on an uncontested basis.
Although the February 16, 2009 order of Lafrenière, J. was made prior to the divorce being granted, this does not alter the fact that the order was made pursuant to the Divorce Act. Section 16 of the Divorce Act provides that a court may make an order respecting custody of or access to a child on application by either or both “spouses.” It is significant that this provision does not refer to “former spouses,” as in section 17 dealing with variation proceedings, or in section 4 dealing with jurisdiction in separate corollary relief proceedings. The use of the term “spouses” in section 16 reflects an intention that custody and access orders can be made pursuant to the Divorce Act in the context of a divorce proceeding prior to the divorce being made, provided that a divorce order is in fact subsequently granted.
[16] See also: Mattina v. Mattina, 2018 ONSC 1569, at paras. 37-38:
When a divorce is claimed, as in this case, the federal statute prevails. The Divorce Act governs and claims for custody and access under the Children's Law Reform Act are stayed as set out in s. 27 of the Children's Law Reform Act:
27 Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed except by leave of the court.
In Bridgeman v Balfour 2012 ONSC 6583 at paras. 8-11, the court correctly concluded that when parties seek claims under the Children's Law Reform Act and the Divorce Act, the custody and access claims are governed by the federal act. Claims for custody and access are stayed pursuant to s. 27.
[17] In this case, it is clear that the order was made under the Divorce Act and as a result the appeal must be heard by the Court of Appeal pursuant to s. 6 (1)(b) of the Courts of Justice Act: Mattina, at paras. 37-38; C.C. v. J.B., 2021 ONSC 2174, at paras. 8-10; Young v. Vanleer, 2020 ONSC 3606, at para. 4. See also: Janzen v. Cook, 2024 ONCA 654
[18] The Respondent in Appeal advises that the Appellant has also filed this appeal in the Court of Appeal and obtained a Court of Appeal file number: COA-24-CV-0854. Accordingly, it is not necessary to consider transferring this appeal to the Court of Appeal as authorized by s. 110(1) of the Courts of Justice Act.
[19] Accordingly, the appeal to the Divisional Court is quashed.
[20] The Appellant’s motion to stay the Order of MacPherson J. must be made to the Court of Appeal pursuant to Rule 63.02(1)(b).
[21] Costs of the proceedings in this Court are reserved to the appeal panel hearing the appeal.
Justice R.E. Charney
Date: September 24, 2024