Court of Appeal for Ontario

Date: 20231227 Docket: COA-23-CV-0296

Roberts, Paciocco and Monahan JJ.A.

Between

Thi Ngoc Anh Tran Applicant (Appellant)

And

Ryan John Robert Taylor Respondent (Respondent)

Counsel: Victor Pilnitz, for the appellant Ryan John Robert Taylor, acting in person

Heard: December 14, 2023

On appeal from the judgment of Justice Sharon Shore of the Superior Court of Justice, dated February 28, 2023.

Reasons for Decision

[1] The parties are spouses who are separated. While self-represented, the appellant brought separate proceedings for spousal support in the Ontario Court of Justice and for divorce and equalization in the Superior Court of Justice.

[2] On September 12, 2022, the appellant’s application for spousal support was dismissed at the Ontario Court of Justice. The trial judge based her decision on the fact that the applicant had commenced parallel proceedings in both the Ontario Court of Justice and the Superior Court of Justice, seeking spousal support in the Ontario Court of Justice, while at the same time seeking equalization and divorce in the Superior Court. The trial judge explained that:

It is an improper use of resources to proceed in this manner. Additionally, financial issues are often interrelated. For instance, the Court would have to know circumstances related to equalization to assess her need for spousal support. As this Court does not have jurisdiction to adjudicate property claims, all claims should have been brought to the Superior Court.

[3] The appellant appealed the dismissal of her spousal support claim in the Ontario Court of Justice to a single judge of the Superior Court of Justice. On February 28, 2023, the appeal judge dismissed the appeal and remitted the matter back to the trial judge “to hear submissions on the issue of jurisdiction and make whatever orders may flow from therefrom.” The appeal judge explained her decision on the basis of procedural fairness. In her view:

The only operational part of the order is that the claim for support is dismissed. There was no direction that it was without prejudice to seeking support in the [Superior Court of Justice], although it can be implied from the endorsement. Other orders that could have been made include a stay of the decision pending the outcome of the proceedings in the [Superior Court of Justice], traversing the matter to the [Superior Court of Justice], an interim order for support or if there was no dispute that the equalization payment would be minimal (i.e. not sufficient to affect the quantum of spousal support) a determination of support. I am not suggesting that the order is wrong. However, I do find that the Applicant was not given an opportunity to make submissions on the issue.

[4] The appellant submits that the appeal judge erred in returning this matter to the Ontario Court of Justice on the issue of jurisdiction only, since an uncontested trial had already taken place, and that the appeal judge should therefore have required the trial judge to make a decision on the issue of spousal support. She asks that this court grant her spousal support. In the alternative, she asks that this matter be remitted to the trial judge with the direction that she determine the issue of spousal support.

[5] We understand the appellant’s frustration about the delay in dealing with her spousal support application. However, we are unable on this record to make an order for spousal support. Moreover, the trial judge was correct to state that the appellant’s financial claims should be heard in a single court in accordance with s. 2(2) of the Family Law Act, R.S.O. 1990, c. F3, which provides that:

[N]o person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court’s opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time.

[6] These provisions reflect both the inefficiency and injustice of determining interrelated financial claims under the Family Law Act separately at two different courts.

[7] That said, it is unfortunate that this matter was not transferred earlier and that the appellant had to incur the expense of the uncontested trial. As the appeal judge noted, it would have been preferable for the trial judge to have canvassed transferring the application, rather than simply dismissing it.

[8] As the appeal judge suggests, it was clearly implied that the “dismissal” of the support claim was dismissed only in the Ontario Court of Justice without prejudice to the appellant’s right to file the same claim with the Superior Court of Justice so that it could be heard with the other financial claims. Since this was an appeal of the order made in the Ontario Court of Justice, the appeal judge could, and in the circumstances of this case, should have specified that the “dismissal” in the Ontario Court of Justice was without prejudice to pursuing the claim in the Superior Court of Justice and directed that all matters proceed together in the Superior Court of Justice.

[9] The order the appeal judge made returning the matter to the Ontario Court of Justice “to hear submissions on the issue of jurisdiction and make whatever orders may flow from therefrom” failed to give effect to the primary objective set out in Rule 2(2) to (4) of the Family Law Rules, O.Reg. 114/99, that cases should be dealt with justly, which includes ensuring that the procedure is fair to all parties and saving expense and time. Requiring the appellant, who has little income and few assets, to go back and forth between courts hardly promotes the primary objective. There is no lack of procedural fairness so long as the support claims are permitted to proceed in the Superior Court of Justice.

[10] The appellant is still proceeding with her equalization and divorce claims in the Superior Court of Justice. In our view, the disposition that best promotes the interests of justice is simply to transfer the appellant’s spousal support application to the Superior Court of Justice where it can be determined along with her claims for equalization and divorce. On the return of her application, she is entitled to seek the wasted costs of the past attendances before the Ontario Court of Justice and the Superior Court of Justice.

[11] Accordingly, the appeal is allowed. The order of the appeal judge is set aside. The appellant’s application for spousal support is transferred to the Superior Court of Justice, to be heard at the same time as her claim for equalization and divorce. To the extent that it is necessary to permit the appellant’s spousal support application to proceed in the Superior Court of Justice, we set aside the part of the Ontario Court of Justice order dismissing the application and instead impose a stay of the appellant’s spousal support application in the Ontario Court of Justice.

[12] In the interim and pending the determination of her claims, the appellant is free to seek an order for interim spousal support in the Superior Court of Justice.

[13] The appellant seeks her costs of this appeal. The respondent failed to respond to her appeal or appear at the hearing, resulting in the appellant having to incur the cost of preparation for and the attendance at the hearing of her appeal. She is entitled to her costs of the appeal from the respondent in the amount of $2,500, inclusive of all amounts, within 30 days of the release of these reasons.

“L.B. Roberts J.A.”

“David M. Paciocco J.A.”

“P.J. Monahan J.A.”