Fournier v. Phelan
[Indexed as: Fournier v. Phelan]
Catherine Regina Fournier, Applicant (Respondent in Appeal) and Richard James Phelan, Respondent (Appellant in Appeal)
Ontario Divisional Court
Matlow, Cosgrove, McLean JJ.
Heard: February 16, 2000
Judgment: July 7, 2000
Docket: Ottawa 98-DV-241
Susan E. Galarneau, for Applicant/Respondent in Appeal.
Gary G. Boyd, for Respondent/Appellant in Appeal.
McLean J. (Mallow J. concurring):
1 This is an appeal from an order of Madam Justice MacLeod dated the 6th day of July, 1998. In that order she refused to set aside an order of Mr. Justice Chil-cott dated the 7th day of July, 1997.
Facts
2 The parties were married on the 23 d̀ of June, 1973 and separated on the 4th of July, 1985. There are two children of the marriage, namely Jennifer, born the 25th of October, 1978 and Erin, born the 215t of August, 1981.
3 There is a separation agreement dated the 19th of September, 1985. The separation agreement, amongst other things, granted joint custody with the respondent to provide support.
4 The parties divorced in 1986. Originally they shared custody equally. In 1996 the appellant took a transfer with the RCMP to the Province of British Columbia.
5 On the 7 h̀ of July, 1996, the respondent made an application before Mr. Justice Chilcott for a change in support. On that occasion Mr. Justice Chilcott granted the change of support. Indeed, Mr. Justice Chilcott made a final order.
6 The appellant did not appeal the order. However, prior to his decision Mr. Justice Chilcott was in possession of a letter from the appellant setting forth that he wished a provisional order to be made under the provisions of the Divorce Act.
7 A motion was then made under rule 59.06 to set aside the order on the following grounds, inter alia: (a) It was not provisional, (b) There were no reasons given by Mr. Justice Chilcott for the variation of the guidelines, which were not in accordance with the Federal Support Guidelines.
8 The motion before Madam Justice MacLeod was dismissed. The appellant now appeals from the order of Madam Justice MacLeod dismissing the motion aforesaid. Further, the appellant makes a motion for leave to extend the time to appeal the original order of Mr. Justice Chilcott.
9 At the commencement of the hearing, upon hearing certain of the submissions, the court requested that argument be made on the motion to extend the time to appeal the order of Mr. Justice Chilcott. This approach was taken because it was the actual order the parties wished to review. After hearing argument, the court allowed the motion to extend the time to appeal. The court made this determination for the following reasons: (1) The real issue was the order of Mr. Justice Chilcott in that it was a final order. As a result of this, a serious jurisdictional issue may have arisen because the order was not made provisional under the provisions of s.17(1) of the Divorce Act of Canada. (2) The other issue that may go to jurisdiction was the fact that no reasons were given for Mr. Justice Chilcott's departure from the figures set forth in the Federal Support Guidelines.
10 Indeed, it was also considered by the court that the time lapse in not appealing could be explained by the fact that the appellant was expecting the order to be provisional due to the letter, which he had filed with the court. If a provisional order has been made, some time would have run for the order to be transmitted from the Attorney General for Ontario to the Attorney General for British Columbia. It would subsequently be subject to a confirmation hearing.
11 In addition, despite the argument of the respondent, the court can find no serious prejudice to the respondent, especially when we balance a serious jurisdictional concern vis a vis a slight evidence of prejudice.
12 Upon allowing the extension the court inquired if the parties were ready to proceed on the appeal at that time. Both parties agreed that they would argue the appeal.
Issues
13 The appeal turns on two points, being the issues previously stated: first whether a final order can be given when a party lives ex juris pursuant to s.17(1) of the Divorce Act of Canada and second, whether a lack of reasons as required under the Divorce Act goes to the jurisdiction of the court.
Analysis
14 This centres on the interpretation of the Divorce Act proceedings of sections17(1) and 18(2):
17.(1) Order for variation, rescission or suspension — A court of competent jurisdiction may make an order varying, rescinding or suspending, pro-spectively or retroactively, (a) a support order or any provision thereof on application by either or both former spouses; or (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.
18.(2) Provisional order — Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and (a) the respondent in the application is ordinarily resident in another province, and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and (b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19, the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it.
15 Clearly, upon reading the sections, a final order may only be made when certain preconditions are fulfilled. Both parties must be ordinarily resident in the province or both parties must attorn to the jurisdiction of the court or must consent to the hearing for such an order to be made.
16 If these preconditions are not met, a provisional order only can be made. It is provisional until it is confirmed by the court of the province of residence of the other party. Clearly this provision overrules any common law conflict of laws provisions as to jurisdiction.
Further Analysis
17 There was a letter sent requesting a provisional order. This letter cannot in any way be considered as the appellant attorning to the jurisdiction of the court. There is clearly nothing in it to indicate such. Likewise, there is nothing in the letter to indicate that the appellant was in any way consenting to the Ontario Court making a final order.
18 It is clear from the provisions of the Divorce Act that such consent must be clear and unequivocal. Neither precondition has been met.
19 There is nothing in the Act, which allows a judge to make a provisional order without these conditions being met. In addition, there have been cases in other provinces in which a similar conclusion has been arrived at, namely, Martell v. Height (1993), 45 R.F.L. (3d) 344 (Sask. Q.B.) and Ralph v. Ralph (1994), 7 R.F.L. (4th) 238 (Nfld. T.D.).
20 On these facts, the decision must go back for a rehearing. It is so ordered.
Reasons for Deviation From the Child Support Guidelines
17(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.
21 This is a mandatory provision. The narrow issue before us is whether the lack of reasons is such that it indicates lack of jurisdiction in the court. It would seem on these facts, however, that the case must go back for a rehearing. Therefore, it is not necessary for this court to decide the issue as the matter will go back to a hearing judge for a complete review and provisional order with such reasons as may be necessary.
Costs
22 Counsel may address the panel in writing within 30 days of the release of these reasons with respect to costs.
Cosgrove J. (dissenting):
1 I am, with respect, unable to concur in the Reasons for Judgment of my learned brother Judges McLean and Matlow herein.
2 In my view, the appellant has failed to establish a bona fide basis for ex- tending the time for appeal of the Order of Justice Chilcott. Because of the lapse of time, the application seems to be a manipulation of the court process.
3 In addition, I concluded that, in fact, the appellant's letter sent in response to the original motion before Justice Chilcott was an attornment to the jurisdiction of the court.
4 For these reasons, I would dismiss the appeal.
Appeal allowed.