Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240830 DOCKET: M55296 (COA-23-CV-0397)

Pepall J.A. (Motion Judge)

BETWEEN

Ashley Janzen Applicant (Appellant/Respondent)

and

David Cook Respondent (Respondent/Moving party)

Counsel: Andreus R. Snelius, for the moving party James A. Brown, for the respondent

Heard: August 26, 2024

Endorsement

Introduction

[1] This decision addresses the issue of the appropriate jurisdiction for an appeal of a final order made only under the Family Law Act, R.S.O. 1990, c.F. 3 by a Family Court judge in Cayuga, dismissing a motion to change a separation agreement.

Background Facts

[2] The parties entered into a separation agreement dated June 30, 2011, which was filed with the Superior Court of Justice, Family Court pursuant to s. 35 of the Family Law Act. The appellant, Ashley Janzen, commenced a motion in the Superior Court of Justice, Family Court, in Cayuga to change the child support and parenting time provisions in the parties’ separation agreement. At trial, only the issue of child support was in dispute.

[3] Before the trial judge, the appellant took the position that there had been a material change in the income of the respondent, David Cook, for the years 2016 to 2021 and that he had made inadequate disclosure. According to the appellant’s affidavit filed before me, the respondent had underpaid child support in an amount of at least $100,000.

[4] The trial judge granted the appellant a one-time top-up payment for child support for the year 2020 in the amount of $1,168. There having been no material change in the respondent’s income, he dismissed the appellant’s motion to change the separation agreement.

[5] The order was dated March 10, 2023. On its face, it was described as (i) a final order, (ii) made pursuant to the Family Law Act, (iii) made pursuant to provincial legislation only, and (iv) granted by Justice Ian Smith of the Superior Court of Justice, Family Court in Cayuga.

[6] The appellant commenced an appeal from this order in the Court of Appeal.

Positions of Parties

[7] Before me, the respondent brings a motion for an order transferring the appeal to the Divisional Court in Hamilton on the basis that the Divisional Court has jurisdiction and this court does not. He relies on ss. 110(1) and 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

[8] Under s. 110(1) of the Courts of Justice Act, where a proceeding or step in a proceeding is brought before the wrong court, it may be transferred to the right court. Therefore, if the respondent is correct, the appeal may be transferred to the Divisional Court in Hamilton.

[9] Under s. 19(1)(a.1) of the Courts of Justice Act, an appeal lies to the Divisional Court from, “a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.

[10] The appellant responds by submitting that the Court of Appeal has jurisdiction by virtue of s. 19(1.2) of the Courts of Justice Act, which addresses the monetary jurisdiction of the Divisional Court. She asserts that as her claim is for more than $50,000, jurisdiction lies with the Court of Appeal. She also relies on the case of Bahadori v. Samadzadeh, 2009 ONCA 10.

Analysis

[11] In 2020, the Courts of Justice Act was amended to simplify appeal routes in family law matters. The amendments came into force on March 1, 2021.

[12] There are three kinds of courts that preside over family law matters in Ontario at first instance: the Family Court, the Superior Court and the Ontario Court of Justice.

[13] Under s. 21.1(1) of the Courts of Justice Act, the Family Court is a branch of the Superior Court of Justice. It is sometimes referred to as the Unified Family Court. It combines the jurisdiction of the Ontario Court of Justice and the Superior Court of Justice in relation to family law matters and hears all such matters where it exists: Christodoulou v. Christodoulou, 2010 ONCA 93, 258 O.A.C. 193, at para. 33. The Family Court sits in various designated locations across Ontario. One such location is Cayuga, Ontario. Described as the Superior Court of Justice, Family Court, it is clear that the order in issue in this motion was a Family Court order.

[14] In other non-designated areas, the Superior Court of Justice and the Ontario Court of Justice both hear family law matters. Each has distinct and overlapping subject matter jurisdiction.

[15] A final order of the Family Court lies to the Divisional Court if it was made only under provincial legislation. As mentioned, s. 19 (1) of the Courts of Justice Act states that “[a]n appeal lies to the Divisional Court from…(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.

[16] As the order the appellant seeks to appeal is final, was made by a judge of the Family Court, was made under the provincial Family Law Act and, importantly, only under that Act, her appeal lies to the Divisional Court. Provided these four characteristics are met, her appeal is governed by s. 19(1)(a.1). The quantum of support disputed by the appellant and the respondent’s alleged failure to disclose are irrelevant to the issue of jurisdiction.

[17] The case of Bahadori v. Samadzadeh relied upon by the appellant predates the amendments to the Courts of Justice Act and therefore has no application to the facts of this case. Had the order been made under the Divorce Act, RSC 1985, c. 3 (2nd Supp), by way of example, the appellant’s arguments would have had merit. However, once the four characteristics are met, the Divisional Court has jurisdiction, not the Court of Appeal.

Disposition

[18] For these reasons, the motion of the respondent is granted. The appeal is transferred to the Divisional Court in Hamilton. The parties agreed that there would be no order for costs of the motion and for that reason, I make no order for costs.

“S.E. Pepall J.A.”