Court Information

File Number: D42331/07 Date: 2012-12-31 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Michael James Junior Ostafichuk, Applicant

And: Cynthia Anna Iaboni, Respondent

Before: Justice Robert J. Spence

Motion Heard: 13 December 2012

Reasons for Judgment Released: 31 December 2012

Counsel

• For the Applicant (Father): Roman Y. Botiuk
• For the Respondent (Mother): Daniel W. Simard
• For the Office of the Children's Lawyer (Legal Representative of Children J.O. and R.O.): Alawi Mohideen

Nature of the Case

[1] This is a motion brought to determine whether the Ontario Court of Justice has jurisdiction to deal with issues of custody and support, following the filing of a separation agreement in the Ontario Court of Justice in 2007, and the subsequent commencement of a divorce proceeding in the Superior Court of Justice in 2008.

[2] It is the father's position that this court lacks jurisdiction. The mother argues that this court does have jurisdiction to address these issues. The Office of the Children's Lawyer ("OCL") supports the mother's position.

Background

[3] The parties, who were married in 1994, have two daughters, namely J.O., age 16 years and R.O., age 14 years. The parties separated in or about July 2007. On September 1, 2007 they entered into a separation agreement ("agreement") which purported to resolve all outstanding issues between them, including parenting, child support and spousal support. The agreement was a "homemade" one, rather than the product of lawyers representing the parties and providing independent legal advice to them.

[4] On or about September 17, 2007, the father filed the agreement in the Ontario Court of Justice, pursuant to section 35(1) of the Family Law Act.

[5] On September 8, 2008, the mother commenced a proceeding in the Superior Court of Justice seeking, inter alia, to set aside the agreement "save and except those items relating to custody and access". The mother also claimed a divorce.

[6] On June 1, 2009, the Superior Court issued a temporary consent order severing the divorce from the corollary issues, permitting the father to proceed with the divorce on an uncontested basis. Part of that order also provided [my emphasis]:

The corollary matters raised in the application of the [mother] and the claim by the [father] will continue as a corollary relief proceeding under the Divorce Act, and the [mother] will have carriage of the corollary relief proceeding.

[7] The Superior Court granted the parties' divorce on or about September 26, 2009. However, neither the mother nor the father ever continued with the corollary relief proceedings in the Superior Court of Justice. Neither party sought a dismissal or discontinuance of those proceedings. The proceedings have simply remained dormant to this day.

[8] On or about October 31, 2011, the father commenced an application in the Ontario Court of Justice, seeking to vary the agreement. Specifically, the father sought sole custody of the children, in place of shared custody which the parties had provided for in their agreement. He also sought a change in his child support obligation. The mother responded with a claim for an increase in spousal support.

[9] When the application came before me as case management judge, on February 21, 2012, I appointed the OCL to investigate and report to the court on the children's views and preferences respecting the parenting/living arrangements with their parents. Mr. Mohideen, on behalf of the OCL, has done a thorough job in meeting with the children and providing the court with a comprehensive picture of the children's views and preferences. As a result of his work on behalf of his child clients, I am told that the parties are now discussing settlement of the parenting issues; and it is my hope that they will be able to set aside their own personal differences long enough to focus on the needs of their children, and resolve the parenting issues.

Discussion

[10] As I noted at the outset, although it was the father who commenced this application for relief, he now takes the position that the Ontario Court of Justice does not have jurisdiction to address the outstanding issues in the face of the wording of the Superior Court order dated June 1, 2009. The mother disagrees, as does the OCL.

a. The Legislation

[11] Subsections 35(1), (2) and (3) of the Family Law Act ("Act") provide:

Domestic Contract, etc., May Be Filed with Court

35. (1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person's affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement. R.S.O. 1990, c. F.3, s. 35 (1); 2006, c. 1, s. 5 (2); 2006, c. 19, Sched. C, s. 1 (2, 4); 2009, c. 11, s. 32 (1).

Effect of Filing

(2) A provision for support or maintenance contained in a contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37; and

Note: On a day to be named by proclamation of the Lieutenant Governor, clause (b) is amended by striking out "and" at the end. See: 2009, c. 11, ss. 32 (2), 53 (2).

(c) except in the case of a provision for the support of a child, may be increased under section 38,

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (2) is amended by adding "and" at the end of clause (c), and by adding the following clause:

(d) in the case of a provision for the support of a child, may be recalculated under section 39.1,

See: 2009, c. 11, ss. 32 (2), 53 (2).

as if it were an order of the court where it is filed. 1997, c. 20, s. 5; 2006, c. 1, s. 5 (3).

Setting Aside Available

(3) Subsection 33 (4) (setting aside in unconscionable circumstances, etc.) applies to a contract that is filed in this manner. R.S.O. 1990, c. F.3, s. 35 (3); 2006, c. 1, s. 5 (4).

[12] The thrust of the father's argument is that the Superior Court order ousts the jurisdiction of the Ontario Court of Justice. Specifically, he argues, the emphasized words in that order,

The corollary matters . . . will continue as a corollary relief proceeding under the Divorce Act, and the [mother] will have carriage of the corollary relief proceeding.

make it mandatory that the jurisdiction to deal with the corollary relief issues rests solely in the Superior Court, notwithstanding the wording of subsection 35(2) of the Act.

[13] But for the intervening divorce proceeding, it is clear that the Ontario Court of Justice would have the authority to vary or enforce the agreement, by virtue of subsection 35(2) of the Act. The question to be decided is whether that authority rests solely, or even concurrently, within the Superior Court of Justice.

b. The Case Law

[14] In Abernethy v. Peacock [2009] O.J. No. 2347 (Ont. C.J.), the parties had filed their separation agreement with the Ontario Court of Justice and subsequently divorced, before then returning to the Ontario Court to deal with the issue of spousal support. Justice Heather Katarynych noted that while the parties were "spouses" within the meaning of section 1 and section 29 of the Act at the time the agreement was filed, they were no longer "spouses" "on the plain read of subsection 1(1) of the Act" at the time of the motion for spousal support. Rather they were now "former spouses".

[15] Justice Katarynych stated [my emphasis]:

It is a recurring principle of the law that variation of support orders must be adjudicated by the level of court that made the order. I look at this argument about jurisdiction as a very practical matter. The level of court cannot change midstream within the meaning of Part III of the act without causing utter chaos. For that reason alone . . . this court must decline jurisdiction over orders made by the Superior Court. The Superior Court must decline jurisdiction to vary orders made by this level of court.

[16] Justice Katarynych ruled that because the separation agreement had been filed in the Ontario Court, thereby conferring jurisdiction on that Court to vary or enforce the terms of that agreement, the Ontario Court continued to have jurisdiction, notwithstanding the subsequent granting of a divorce in the Superior Court.

[17] The husband appealed that decision to the Superior Court of Justice. He argued that because the parties had been divorced and were no longer "spouses" within the meaning of the Act, the sole jurisdiction to address issues of support resided in the Superior Court, under the Divorce Act. He argued that divorced spouses cannot rely on the Family Law Act once they are divorced because, applying the doctrine of paramountcy, subsequent divorce triggers the operation of all future claims under the Divorce Act. On appeal, Justice Thea Herman disagreed. Her reasons are found at Abernethy v. Peacock, [2009] O.J. No. 2066 (S.C.J.).

[18] In the course of her analysis, Justice Herman considered the decision in Gow v. Gow, [1989] O.J. No. 1 (H.C.J.), a decision of Justice Thomas Granger. In Gow, the parties' separation agreement was filed in the then-Provincial Court. However, as a result of the subsequent Divorce Act proceeding, the wife argued that the husband could not seek relief under the Family Law Act. Beginning at paragraph 17, Justice Granger stated:

If a petitioner has not requested that support be determined under the Divorce Act, 1985, leave to continue under the [Family Law Act] should be granted as a matter of course. . . . The husband is under no obligation to invoke the jurisdiction of the federal statute, and the rule of paramountcy of federal legislation does not require the husband to proceed with variation by invoking the federal legislation.

[19] Justice Herman also considered the late Professor James G. McLeod's discussion of paramountcy, which he wrote as an annotation to Huarzek v. Fairfield, (2004), 48 R.F.L. (5th) 275 (Sup. Ct.). According to Professor McLeod (as stated by Justice Herman at paragraph 21 of her judgment [my emphasis]):

The former "occupied fields" theory of paramountcy had been replaced by a test of "operational incompatibility". A court can apply provincial legislation even if there is federal legislation in the field as long as applying the provincial legislation is not operationally incompatible with the federal legislation. Thus, if there is a support order under the Family Law Act and no support order under the Divorce Act, there is no operational incompatibility. The support order under the Family Law Act remains valid and can be varied under that Act even if the parties are no longer married at the time that one of them moves to vary.

[20] As Justice Herman noted, the concept of "operational incompatibility" is implicitly acknowledged in subsection 36(1) of the Family Law Act, whereby the Ontario Court of Justice can decide to continue with a party's claim for support under the Family Law Act, notwithstanding that one of the parties subsequently commences a divorce proceeding in the Superior Court.

[21] Justice Herman concluded that because the husband/petitioner had not sought corollary relief under the Divorce Act, there was no operational incompatibility, and he was free to proceed with his claims under the Family Law Act.

[22] The decisions in Abernethy and Gow have since been approved of, in the clearest of terms, in Houle v. Trottier [2012] O.J. No. 505 (S.C.J.), a decision of Justice Mary J. Nolan. In her own thorough analysis of the issue, Justice Nolan concluded [my emphasis]:

With respect to the decision in Gow, if the parties' separation agreement in the matter before me was filed with the Ontario Court of Justice pursuant to s. 35(1) of the current Family Law Act and thus became an order of that court in accordance with s. 35(2) of the Act, that case would dictate that this court has no jurisdiction to vary any part of that agreement. Indeed, only the provincial court is able to vary a separation agreement that has been filed in that court under the authority of s. 35(1).

The Effect of the June 1, 2009 Superior Court Order

[23] Notwithstanding the foregoing analysis, the father takes the position that the Superior Court order dated June 1, 2009 has created what is, in effect, a conflict or an operational incompatibility. Specifically, because that court purported to direct the corollary issues to proceed in the Superior Court, any attempt to address those issues in the Ontario Court would conflict with that order and, accordingly, must give way to the Superior Court order.

[24] I disagree with that argument for three reasons.

[25] First, the weight of the foregoing authority makes clear that the Ontario Court of Justice has exclusive jurisdiction to vary a separation agreement that has been filed with that court pursuant to section 35(1) of the Act. And because of this, the Superior Court order cannot be interpreted in such a way as to clothe that court with jurisdiction to vary the separation agreement. Rather, the right to "continue" the "corollary relief" issues, must be interpreted as referring to the Applicant/mother's claim in the Superior Court Application to set aside the separation agreement. More specifically, the mother's claim in that Application was to set aside, rather than to vary the terms of the separation agreement.

[26] Second, if I am mistaken as to the first reason, such that the Superior Court order did purport to assume authority over a variation of the separation agreement, the parties' subsequent inaction must be taken as an abandonment of that claim, at least, insofar as proceeding with that claim in the Superior Court of Justice. I am buttressed in this conclusion not only by the parties' subsequent lengthy inaction in the Superior Court of Justice but, additionally, by the fact that the father commenced a new application in the Ontario Court of Justice, rather than seeking to continue with the claims in the Superior Court. And, for her part, the mother responded to the father's claims in the Ontario Court of Justice with her own claims, seeking to have those claims addressed in the Ontario Court as well. Thus, by a combination of their own inaction in the Superior Court since June 1, 2009, as well as their subsequent actions in the Ontario Court of Justice, the parties have effectively demonstrated their intention to abandon any further proceedings in the Superior Court of Justice.

[27] Third, I conclude that there is no "operational incompatibility" which would prevent the Ontario Court of Justice from ruling on the corollary relief issues. Specifically, the Superior Court did not purport to make any substantive rulings on the corollary relief issues which might otherwise prevent the Ontario Court of Justice from doing so. The order dated June 1, 2009 was a procedural order only. Accordingly, it is now open to the Ontario Court of Justice to rule substantively on the custody and support issues.

Conclusion

[28] For all of the foregoing reasons I conclude that the Ontario Court of Justice does have jurisdiction to vary the separation agreement, filed in this court pursuant to section 35(1) of the Act.

[29] I note that this matter is scheduled to return before me for a case conference on February 22, 2013.

[30] Once again, I urge the parties to resolve at least the parenting issues prior to the next court attendance and, if possible to also engage in meaningful settlement discussions in respect of the support issues.

Justice Robert J. Spence

December 31, 2012

Footnotes

[1] Although at one point during his argument, father's counsel stated that his client was prepared to "attorn" to the Ontario Court of Justice on the child-related issues only. However, it is fundamental that the parties cannot, by their consent, clothe a court with jurisdiction it does not have. See, for example, Carpenter v. Carpenter (2000), 11 R.F.L. (5th) 281 (Ont. S.C.)

[2] The doctrine of "paramountcy" essentially provides that where the substance of provincial legislation runs into federal legislation, the former must give way to the latter.

[3] Although as my subsequent analysis of the case law suggests, it is not really about "leave" but, instead, the jurisdiction of the Ontario Court would appear to be exclusive.

[4] Subsection 36(1) provides, "When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise" (my emphasis).

[5] Which included a review of the reasons in Sadowski v. Sadowski, 2011 ONCJ 403 (Ont. C.J.), Doherty-Mulder v. Mrowietz (2003), 43 R.F.L. (5th) 313 (Ont. S.C.) and Maves v. Whitsitt, 2011 CarswellOnt 11869 (S.C.).

[6] Per the wording contained in the Superior Court order.