CITATION: C.C. v. J.B., 2021 ONSC 2174
DIVISIONAL COURT FILE NO.: 45/21
DATE: 20210324
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: C.C., Appellant
AND:
J.B., Respondent
AND:
P.B. and L.B., Respondents
BEFORE: Pattillo, Penny and Kurke JJ.
COUNSEL: Kristen Normandin and Beth Purdon-McLellan for the Appellant
Alexandra Kirschbaum and Katherine Cooligan for the Respondents
HEARD at Toronto by videoconference: March 22, 2021
ENDORSEMENT RE: JURISDICTION ON APPEAL
[1] This is an appeal from the December 10, 2020 order of Audet J. (2020 ONSC 7610). The appeal arises out of an extremely complex and fraught family law case involving a married couple and four young children. I will not attempt to summarize the entire background because, as it happens, it is not necessary for determination of the narrow preliminary issue of the jurisdiction of the Divisional Court to hear this appeal.
[2] The appellant, who is the applicant mother (AM), commenced proceedings under the Family Law Act and Children’s Law Reform Act in May 2018. In July 2018, Justice Engelking made a temporary order granting AM custody of the couple’s three children. AM was pregnant at the time with a fourth child. Engelking J. also granted AM the ability to leave Ontario with the children to live in Pennsylvania. AM moved to Pennsylvania, and then promptly left Pennsylvania and moved to Virginia. There, in August 2018, AM gave birth to their fourth child. It is not in dispute that all four children are children of the marriage.
[3] The respondent father (RF) filed a divorce application in October 2018 (identifying all four children as children of the marriage). This proceeding was consolidated with the AM’s family law proceeding under the FLA and CLRA on consent in February 2020.
[4] In March 2019, AM filed a petition before the Virginia court seeking custody of the fourth child. In February 2020, RF initiated a pre-trial hearing in Virginia, asking the Virginia court to decline jurisdiction over the fourth child on grounds of AM’s alleged misconduct and inconvenient forum. The Virginia court dismissed the father’s motion in a brief endorsement of March 17, 2020.
[5] RF then brought a motion in the consolidated proceedings in Ontario to vacate or vary the July 2018 order of Justice Engelking. He sought, among other things, an order that the parties’ four children be immediately returned to Ontario and that the father be granted interim sole decision-making authority on all aspects of the children’s care.
[6] That motion was argued before Audet J. In her reasons, the motion judge found that the Ontario Superior Court of Justice had jurisdiction over the fourth child. She accepted that the child was born in the U.S., was an American citizen and had never been to, much less resided in, Ontario. However, she held that the child was a child of the marriage under the Divorce Act and that RF was seeking corollary relief (custody of and access to all four children) under s. 16 of the Divorce Act in the consolidated proceeding. This, she reasoned, was sufficient to ground her jurisdiction to make orders as to custody of and access to the fourth child as well as the other three, older children (regarding whom there was, and is, no dispute that they are subject to the jurisdiction of the Ontario Superior Court of Justice). The parties agree, and we find, that this aspect of motion judge’s order, asserting jurisdiction over the fourth child, was a final order. It is this finding, the assertion of jurisdiction over the fourth child, from which the AM appeals.
[7] At the outset of the hearing of the appeal, the panel asked the parties to address the jurisdiction of the Divisional Court to hear the appeal and, specifically, asked counsel to review and address two decisions of the Divisional Court: Mattina v. Mattina, 2018 ONSC 1569; and, Young v. Vanleer, 2020 ONSC 3606. Following a brief recess and submissions from the parties, the panel advised the parties of its conclusion that the appeal was properly brought before the Court of Appeal for Ontario. The panel also declined RF’s invitation to dismiss the appeal and directed that the appeal be transferred to the Court of Appeal, to be heard as expeditiously as possible. We did this with reasons to follow. These are the reasons.
[8] Section 6(1) of the Courts of Justice Act provides that an appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a). Clause 19(1)(a) provides that an appeal lies to the Divisional Court from a final order of a judge of the Superior Court of Justice described in subsections (1.1) and (1.2). Subsections (1.1) and (1.2) both specify appeals from orders under certain monetary limits ($25,000 or $50,000 depending on when the order was made). The motion judge’s final order under the Divorce Act, establishing jurisdiction over the fourth child, was not an order for the payment of money within the monetary jurisdiction of the Divisional Court. Accordingly, the Divisional Court does not have jurisdiction to hear this appeal under s. 19(1)(a) of the CJA.
[9] In addition, Part III of the CLRA, read in conjunction with s. 21.9.1 of the CJA, provided for an appeal from a final order of the Family Court made under Part III of the CLRA to the Divisional Court. However, an order made under the Divorce Act is subject to s. 6(1)(b) of the CJA and any appeal is to the Court of Appeal. This was the finding of prior panels of the Divisional Court in the two previously mentioned cases, Mattina v. Mattina and Young v. Vanleer.
[10] The CJA was amended, effective March 1, 2021, to provide explicitly that an appeal is available to the Divisional Court from a final order of the Family Court but only if the order was made “under a provision of an Act or regulation of Ontario”: s. 19(1)(a.1).
[11] Whether under the pre-March 1, 2021 or the post-March 1, 2021 CJA provisions, the appellant argues that the main basis for her appeal is that the motion judge erred in founding her jurisdiction on the Divorce Act. She argues that jurisdiction, if any, could only be founded on s. 22 of the CLRA. Accordingly, she submits that the appeal involves an order under the CLRA. We do not accept this argument. It is, for one thing, entirely tautological. The fact is that the motion judge unambiguously founded her jurisdiction over the fourth child on the provisions of the Divorce Act. That is the order appealed from. The motion judge may have been wrong to do so, as the appellant argues, but it is nevertheless an order made under a federal statute. Neither the pre-March 1, 2021 appeal route under the CLRA nor the appeal route under 19(1)(a.1) are available to the appellant as a basis for this Court’s jurisdiction.
[12] Accordingly, like those prior panels of our Court in Mattina and Young, we do not come to this decision lightly, but have concluded that we do not have jurisdiction to hear this appeal.
[13] Counsel for RF asked us, rather than to transfer the appeal to the Court of Appeal, to dismiss it altogether under the three-factor test set out in Dunnington v. 656956 Ontario Ltd., (1991) 1991 7107 (ON SC), 9 OR (3d) 124 (Div. Ct.). There, the Court held that a transfer is discretionary based on the following questions:
Does the appellant have a meritorious appeal?
Will the respondent suffer undue prejudice while the appeal is waiting to be heard?
Has the appellant moved expeditiously once it was known that jurisdiction was disputed?
[14] The interaction of the Divorce Act and the CLRA on matters involving a child’s habitual residence, and the interaction of the AM’s proceedings in Ontario, the RF’s proceedings in Ontario and the AM’s proceedings in Virginia (including the Virginia court’s prior ruling on jurisdiction), raise complex issues. We are not prepared to say the AM’s appeal is frivolous or vexatious in the circumstances. We are not satisfied RF (or his parents, who are now also parties) will suffer undue prejudice. AM has not sought a stay of the motion judge’s order. Indeed, we were told she has been complying with it. Her counsel undertook to the Court, on her behalf, that AM would not raise, as a barrier to RF’s pending motion to further vary the order of the motion judge, that there is still a pending appeal of the narrow issue of jurisdiction over the fourth child outstanding. Since it was the panel, not RF, who raised the issue of the Divisional Court’s jurisdiction, the third factor has no application.
[15] We therefore transfer this appeal to the Court of Appeal for Ontario on jurisdictional grounds. It is in the best interests of the children and the parties that this appeal be heard as expeditiously as possible.
[16] Costs of the appeal to this Court are reserved to the appeal panel hearing the appeal.
Pattillo J.
Penny J.
Kurke J.
Date: March 24, 2021