Court File and Parties

Toronto Registry No.: DFO-06-1115882-03

Date: 2014-07-15

Ontario Court of Justice

Between:

David Johanns, Applicant

— And —

Susan Fulford, Respondent

Before: Justice Marion L. Cohen

Ruling released on: 15 July 2014

Counsel:

• S. Lawrence Liquornik — counsel for the applicant
• Harold Niman / Meysa Maleki — counsel for the respondent

Ruling

[1] Introduction

JUSTICE M.L. COHEN:— This is a ruling on a question of jurisdiction in a family law case. The issue arises within a motion to change the final consent order of Justice Heather L. Katarynych, dated 10 December 2009. The order settled a highly contentious custody and access case that had been before this court for three years. Despite the settlement, litigation between the parties has continued since the date of the final order. The jurisdictional issue arises because in some instances this litigation has proceeded in the Ontario Court of Justice, and in others, in the Superior Court of Justice.

[2] The Parties and Child

The parties are the parents of Harrison James Fulford, born on 22 July 2006. The applicant is the child's father. He has supervised access pursuant to a temporary order made in this court on 13 December 2013, varying the final order. The respondent is the child's mother. She has custody of the child pursuant to the final order.

[3] Prior Motions

The current motion to change was commenced by the respondent in December 2012. A previous motion to change in relation to financial issues was commenced by the applicant, and summarily dismissed, in 2011.

[4] Multiple Proceedings

As I have indicated, there have been multiple proceedings since the date of the final order. There have been a variety of motions in the Ontario Court of Justice that resulted in a number of temporary orders. During the same period and despite the fact that the original application proceeded in the Ontario Court of Justice, the respondent has sought and obtained at least four orders in the Superior Court of Justice respecting incidents of custody and access. On at least one occasion, motions for the same relief were brought in both courts within days of one another.

[5] Jurisdictional Uncertainty

As the current case management judge, I have made several temporary orders in the motion to change. However recently, two judges in the Ontario Court of Justice have declined to make temporary orders on the grounds that the Superior Court of Justice has become the court of competent jurisdiction in the motion to change. Such an uncertain situation cannot be allowed to continue, and I have requested and received submissions from the parties on the question of which court is in a position to exercise jurisdiction in the motion to change.

[6] Positions of the Parties

The applicant submits that the matter should be proceeding in the Superior Court of Justice. The respondent submits that the Ontario Court of Justice is the proper court to adjudicate the motion to change.

[7] Nature of the Case

This matter has always been what is termed "a high conflict" case. The parties have been involved in litigation, or in a dispute resolution process with a parenting co-ordinator, for the whole of the child's life. The parenting co-ordinator is no longer engaged. There have been numerous applications, conferences, motions, orders and appeals. The court record is voluminous. In this ruling, I address only those occasions where the Superior Court has either exercised jurisdiction as a court of first instance, or dealt with the issue of jurisdiction in the course of an appeal.

1: History of the Proceedings

[8] Original Application and Final Order

The history of this matter begins on 30 September 2006, when the applicant commenced an application for joint custody in the Ontario Court of Justice. The respondent answered with a claim for sole custody and child support. After a plethora of interim proceedings, which need not be detailed here, and on the eve of trial, the custody and access issues were resolved before Justice Katarynych on 10 December 2009, by the final consent order. The custody/access order incorporated a "Recommended Parenting Plan," authored by Dr. Irwin Butkowsky, dated 24 April 2009.

[9] Terms of the Final Order

The final order of 10 December 2009, provides that:

1. The respondent has sole custody of the child;

2. All parenting issues between the parties "shall be in accordance with the Recommended Parenting Plan prepared by Dr. Irwin S. Butkowsky and dated April 24, 2009 ("the Parenting Plan") . . . attached as "Schedule "A" to this Order and forming an integral part of this Order."

3. The parenting co-ordinator was named;

4. "If disputes arise with respect to paragraph 13 of the Parenting Plan (Travel with the child) they shall be dealt with by [the parenting coordinator] as provided in paragraph 3 of the Parenting Plan."

[10] Travel as a Contentious Issue

Travel with the child has always been a contentious issue between the parties, and it is not surprising that there is specific reference to travel as a term of the order. Paragraph 3 of the Parenting Plan provided for a dispute resolution process regarding certain specified issues, which, pursuant to the order, included travel.

[11] Status of the Parenting Plan

It is important to bear in mind that the Parenting Plan has no independent force. It had not become part of any agreement between the parties. It was incorporated into an order and its terms are the terms of the order. In this ruling, because I will be referring to paragraph numbers or headings in the Plan, hereinafter I shall use the term "Plan/Order" for convenience. In addition, for ease of reading, I shall, on occasion, refer to the Ontario Court of Justice as the "Ontario Court", and the Superior Court of Justice as the "Superior Court."

[12] Dispute Resolution Scheme

Although the Plan/Order provided a dispute resolution scheme, it was not comprehensive. The scheme is set out in two paragraphs of the Plan/Order. In a paragraph headed "Ongoing Education/Facilitation", the parents committed to the use of a parenting co-ordinator to resolve issues or disputes that arose from time to time. Where the parties were unsuccessful in reaching an agreement, the parenting co-ordinator would declare an impasse in writing and the parties would engage in an agreed upon arbitration process, utilizing the parenting co-ordinator or some other agreed upon individual as arbitrator. The parties would be bound by the ensuing arbitration award. There were no provisions detailing the contemplated arbitration process.

[13] Major Decisions

Disputes regarding major decisions, or permanent changes to the parenting plan, were not subject to resolution through the arbitration process. In the paragraph headed "Major Decisions", the Plan/Order specified that, in the event of a dispute over a major decision, the parties could refer the issue to the parenting co-ordinator, who would try to assist the parents to resolve the issue, failing which, the respondent had the right to make the final decision. However, if a decision related to an extra-curricular activity that might affect the child's time with the applicant, the decision could only be effected with joint consent. The Plan/Order was silent as to the recourse in the event there was no joint consent in these circumstances.

[14] Implicit Jurisdiction

The Plan/Order was also silent on the question of recourse in the event the respondent's decision on a major issue was rejected, or if a party sought a permanent change to the plan. Given that the Plan was incorporated into an order of the Ontario Court of Justice, and given that arbitration was specifically excluded in the case of major issues or permanent changes, it was implicit that any variation application would be brought in the Ontario Court of Justice.

[15] Legislative Framework — Children's Law Reform Act

The parties can have been under no misapprehension that the Ontario Court of Justice was the court with the jurisdiction to vary their order, given the very clear provisions of the Children's Law Reform Act, R.S.O. 1990, c. C-12, in this regard:

71. Place of application for interim order. —(1) An application for an interim order shall be made to the court in which the original proceeding was taken.

(2) Place of application to vary order. — An application under this Part to vary an order may be made to the court in which the original proceeding was taken or to a co-ordinate court in another part of Ontario.

[16] Section 66 — All Proceedings in One Court

Furthermore, section 66 of the Children's Law Reform Act provides that cases that start in one court stay in that court, unless that court orders a transfer:

66. All proceedings in one court. — Except as otherwise provided, where an application is made to a court under this Part, no person who is a party to the proceeding shall make an application under this Part to any other court in respect of a matter in issue in the proceeding, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the opinion of the court, the court having other jurisdiction is more appropriate to determine the matters in issue that should be determined at the same time.

In other words, having brought an application in the Ontario Court of Justice, the parties were bound to commence any variation proceedings in that court unless they brought a motion to transfer the proceedings to the Superior Court under section 66. In fact, the applicant did bring such a motion in November 2011. His motion was denied and the denial was upheld on appeal to the Superior Court on 3 May 2013.

[17] Disregard of Legislation

Nonetheless, neither the clear wording of the legislation, nor the denial of the motion to transfer in November, 2011, prevented the parties from moving on four occasions for relief in the Superior Court.

2: Motions in the Superior Court of Justice

[18] Nature of Superior Court Motions

The motions in the Superior Court were all commenced by the respondent. The record before me is not complete, but I am able to gather that at least some of the resulting orders were made on consent. The motions involved similar issues. The respondent wished to travel with the child and the applicant refused consent, or the applicant wished to take the child out on his boat during access visits, and the respondent was convinced the child would be placed at risk. In each case, the respondent pleaded that the circumstances were urgent.

[19] Reasons for Superior Court Motions

Why were the urgent motions brought in the Superior Court rather than the Ontario Court of Justice? In one instance, the respondent alleges that the circumstances were urgent and that the Ontario Court could not provide dates in a timely manner. In another instance, the respondent states that there were "no dates in the Ontario Court of Justice to have this matter heard before our former case management judge . . . in a manner that met my timelines for obtaining Harrison's passport and scheduled travel plans." In a third, arguably more ambiguous instance, a choice was made to enforce an "interim arbitration award" regarding boating issues, rather than to continue with a motion in the Ontario Court, even though the arbitration provisions in the Plan/Order had been ordered to be null and void, and even though a motion regarding boating issues was underway in the Ontario Court.

[20] Availability of Urgent Procedures

As I indicated to counsel in argument, I find it extremely doubtful that a date could not be arranged in the Ontario Court to accommodate an urgent motion. This court has procedures to ensure urgent motions are heard, and, in urgent circumstances, a motion need not proceed before the assigned case management judge. Assuming however that the respondent was under a bona fide misapprehension about the procedures in the Ontario Court, based on information from her lawyer's clerk, I fail to understand why it was considered reasonable to move in the Superior Court rather than engaging in further efforts to have the matter heard in a timely fashion in the appropriate court.

[21] Summary of Superior Court Orders

Before proceeding further, I will summarize the four orders of the Superior Court.

On 13 May 2010, on motion by the respondent, a judge of the Superior Court made an order including the following:

2. Pursuant to Rule 5(2) of the Family Law Rules, this court has jurisdiction to deal with this urgent issue and it is hereby ordered that the parties shall not take [the child] . . . on any boat for one week.

3. Directing that this order made in the Ontario Superior Court of Justice shall be filed . . . with the Ontario Court of Justice, 311 Jarvis Street, Toronto, Ontario and a date for a for a full hearing of this motion before a judge of the Ontario Court of Justice shall be scheduled.

On 28 June 2011, a judge of the Superior Court of Justice made an interim without prejudice order incorporating the interim arbitration award of the parenting co-ordinator dated 19 June 2010, and 27 October 2010, respecting boating and attendance at camp. The judge adjourned the matter to a case conference and made a disclosure order. She also ordered that:

The Parenting Plan appended to the order of Justice Katarynych dated 10 December 2009, provides additional clauses related to registration in extra-curricular activities which also apply.

On 2 February 2012, a judge of the Superior Court made an order dispensing with the respondent's consent to travel/passport and adjourned the motion to 5 April 2012;

On 5 April 2012, on consent, a judge of the Superior Court made an order regarding travel, make-up access, passports, and that:

In all other respects, the terms of the order of Katarynych dated 10 December 2009 (including the Recommended Parenting Plan prepared by Dr. Irwin Butkowsky attached as Schedule A thereto) shall continue.

[22] Orders Made by Ontario Court of Justice

Since 26 July 2013, as case management judge in the motion to change, I have made at least five substantive orders. Several of these orders relate to travel arrangements and consents. On 16 May 2014, the respondent brought a temporary motion to change one of my travel orders. The motion was heard by Justice Penny Jones, who dismissed the motion on the basis that she lacked jurisdiction in light of the Superior Court order dated 5 April 2012.

3: Analysis

[23] Superior Court Orders as Variations

Between 12 May 2010 and 5 April 2012, four different judges of the Superior Court made four orders, on motions of the respondent, varying, presumably temporarily, this court's order of 10 December 2009. Two of the orders in the Superior Court granted the respondent permission to obtain a passport for the child and to travel with the child without the applicant's consent. Two of the orders affected the applicant's ability to take the child on his sailboat, and one related to the child's attending camp. In two cases, provisions of the Ontario Court order were directly imported into the Superior Court order. In one case, the Superior Court judge made a direction regarding scheduling in the Ontario Court, and directed that his order be filed in the Ontario Court of Justice file. In all cases, the Superior Court was acting as a court of first instance.

[24] Reliance on Rule 5(2)

It is clear that the respondent was aware of the jurisdictional problems when she commenced her motions in the Superior Court. In her pleadings, she relied on subrule 5(2) of the Family Law Rules as a foundation for the exercise of jurisdiction by the Superior Court. Rule 5 requires that a case dealing with custody of or access to a child must be started in the municipality where the child ordinarily resides. Subrule 5(2) provides that:

(2) Starting case — Danger to child or party.— . . . , if there is immediate danger that a child may be removed from Ontario or immediate danger to a child's or party's health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule (1) immediately after the motion is heard, unless the court orders otherwise.

[25] Claimed Dangers

On 13 May 2010, the "immediate danger" arose from the applicant's plan to take the child out on his boat. On 2 February 2012, the applicant asked for "An order (if necessary) for leave to immediately proceed with this motion on the grounds of urgency and on the grounds that the issue on this motion was previously addressed by this court." In this instance, the danger related to the possible disruption of the respondent's travel plans. The subsequent orders arose on adjournments of this claim.

[26] Rule 5(2) Does Not Provide a Remedy

While I do not doubt the respondent's feelings of urgency, subrule 5(2) does not provide a remedy for her concerns.

[27] Rule 5 Addresses Municipality, Not Court Level

On its face, rule 5 is directed to the question of identifying the municipality in which a case will be heard. Subrule 5(2) permits a case to be started in a municipality other than one in which the child resides in circumstances of immediate danger to a child's health or safety or imminent removal. Rule 5 has nothing to say about the jurisdiction/level of court in which a case will be heard. Needless to say, the Ontario Court of Justice at 311 Jarvis Street in Toronto, and the Superior Court of Justice at 393 University Avenue in Toronto, are located in the same municipality.

[28] Parens Patriae Jurisdiction

It was suggested in argument that the Superior Court may have invoked its parens patriae jurisdiction. The court's inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap: A.A. v. B.B. and C.C., 2007 ONCA 2, 83 O.R. (3d) 561, 220 O.A.C. 115, 278 D.L.R. (4th) 519, 150 C.R.R. (2d) 110, 35 R.F.L. (6th) 1. This child was never in danger and there was no legislative gap. In any event, there is nothing in the record before me to suggest that that the Superior Court was exercising its parens patriae jurisdiction on the motions.

[29] Concurrent Jurisdiction Defined

The Ontario Court of Justice and the Superior Court of Justice have concurrent jurisdiction in matters concerning custody, access and child support. Barron's Canadian Law Dictionary defines concurrent jurisdiction as "Equal jurisdiction; that jurisdiction exercised by different courts at the same time, over the same subject matter and within the same territory, and wherein litigants may, in the first instance, resort to either court indifferently" (my emphasis).

[30] Limits of Concurrent Jurisdiction

Concurrent jurisdiction means that, under provincial family law statutes, both courts can deal with issues of custody, access, and support, as courts of first instance. It does not mean that where a court has made a final order in an application, the motion to change can be brought in the other court. It does not mean that an order made in one court can be varied in the other court, where the other court acts as a court of first instance. It does not mean that a party can pursue actions for the same relief in both courts at once. It does not mean that a party can begin an application in one court and bring a motion in another court for the same relief. It does not mean that a party bringing a motion in an application can find the court with the most convenient date, and bring the motion in that court.

[31] Absence of Unified Family Court

I recognize that the problem that occurred in this case is rooted in the absence of a unified family court in Toronto, a state of affairs that may have engendered a culture in which concurrent jurisdiction is imperfectly understood or respected. However, the law is clear that a court cannot vary or interfere with the orders of another court of concurrent jurisdiction in circumstances such as these. To ignore the rule invites confusion, contradiction, distraction, inconvenience and expense to the parties, all of which have occurred here.

[32] Determination of Proper Jurisdiction

The issue of which court has jurisdiction in this case must be resolved so that the substantive issues can be properly adjudicated. The parties chose the Ontario Court of Justice as the forum for determining their custody and access issues. The legislation is clear that any application to vary the order must be brought in the court in which the original proceeding was taken. There has been no successful application to transfer the proceedings to the Superior Court. As a practical matter, while the parties have resorted to, or consented to, the jurisdiction of the Superior Court in certain circumstances, it is clear from their overall conduct that they accept the jurisdiction of this court as the appropriate forum in which to deal with any variation of the final order, and properly so.

[33] Doherty-Mulder v. Mrowietz

In the case of Doherty-Mulder v. Mrowietz, 43 R.F.L. (5th) 313, Justice Emile R. Kruzick of the Superior Court of Justice considered whether the court had jurisdiction to adjudicate an application to vary a custody/access and child support order made in the Ontario Court of Justice. The Superior Court had already made several interim orders in the application. Having reviewed the applicable legislation, he concluded that:

[6] The application before me is clearly an application to vary an order of the Ontario Court. Although earlier orders were made by this court, I find the court erroneously assumed jurisdiction and was perhaps misled by the pleadings or the consent of the parties to have it heard.

Justice Kruzick dismissed the application without prejudice to the parties to renew in the Ontario Court of Justice.

[34] Superior Court Erred in Assuming Jurisdiction

In matters involving the best interests of children, our courts are always at the ready, particularly where there is a suggestion of risk. I come to my decision in this case with the greatest of respect for the judges of the Superior Court who intervened in this case. It is my view however, that, when the Superior Court judges made their rulings, they erroneously assumed jurisdiction as courts of first instance. With the exception of the ruling regarding the parenting co-ordinator's "interim arbitration awards", the rulings were based upon a mistaken interpretation of subrule 5(2) advanced by counsel. There is no evidence that sections 66 and 79 of the Children's Law Reform Act, were brought to the attention of the Superior Court in any of these motions, a matter that lends weight to my conclusion.

[35] Status of Superior Court Orders

Despite having come to this conclusion, I see no practical value in addressing the status of those Superior Court rulings which are now moot — i.e., in which there remains no live issue before the court. However, to the extent there are rulings that purport to address ongoing issues, ("the terms of the order of Katarynych, J . . . shall continue"), those rulings should be treated as per incuriam, and therefore as having no force and effect. In sum, I find the Superior Court orders pose no impediment to this court's continuing to adjudicate the motion to change and any motions for temporary relief in the proceeding. The Ontario Court of Justice is the only court having jurisdiction in this matter as the court of first instance.

[36] Costs

Although the respondent initiated the proceedings in the Superior Court, it appears that the applicant, when represented by counsel, consented to the most far-reaching order. In all the circumstances, there will be no order of costs on this motion.

Disposition

Released on: 15 July 2014

Justice Marion L. Cohen

Schedule 'A'

1. The orders of the Superior Court referred to in paragraph 21 of the written reasons herein pose no impediment to this court continuing to adjudicate the motion to change and any motions for temporary relief in the proceeding;

2. The Ontario Court of Justice is the only court having jurisdiction in this motion to change as a court of first instance.

Footnotes

[1] The child support issues were resolved on consent by Justice Ellen B. Murray, on 14 December 2009, in a further order.

[2] See Chemery v. Danis, 43 R.F.L. (2d) 459.

[3] On 27 May 2011, the applicant commenced a motion to change the support provisions of Justice Murray's order of 14 December 2010. At the case conference, he asked the court to transfer the matter to the Superior Court of Justice. The court did not order a transfer. On 28 November 2011, the applicant brought a motion to have "this file transferred to Superior Court on the grounds that there is a duplicity of proceedings between the Ontario Court of Justice and the Superior Court of Justice." On 30 November 2011, Justice Penny J. Jones dismissed the applicant's motion to transfer the proceedings, and the motion to change. The applicant appealed the dismissals to the Superior Court. In his notice of appeal, the applicant again stated that "There is a duplicity of proceedings in our file between the Superior Court and the lower court", and that "Justice Jones erred in law by not having the file transferred to the Superior Court as a previous motion in our file had already been heard there;" The respondent moved for summary judgment on the appeal. On 3 May 2013, Justice Beth A. Allen of the Superior Court, granted summary judgment to the respondent, holding that "The grounds of appeal are without merit."

[4] Although I do not find it clear on the evidence before me that the determinations of the parenting coordinator, set out in an e-mail, actually constituted "interim arbitration" awards, I will assume that they did. I will merely note that, on 15 June 2011, Justice Murray made an order permitting travel, and adjourned the boating issue. She also endorsed the following: "The parties agree that the arbitration provisions of the parenting plan agreement are null and void."

[5] A decision given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. See John Deere Ltd. v. Receiver-Manager of Firdale Farms Ltd., 50 Man. R. (2d) 45.