Citation: Sutton v. Sutton 2022 ONSC 5457

DIVISIONAL COURT FILE NO.: DC-22-1295

DATE: 20220926

SUPERIOR COURT OF JUSTICE-ONTARIO

DIVISIONAL COURT

RE: JASON SUTTON, Appellant

AND: ALISON SUTTON, Respondent

BEFORE: Backhouse, Stewart and Matheson JJ.

Counsel: Jason Sutton, Self-Represented Appellant Mercedes Ibghi, Counsel for the Respondent

Heard at Oshawa by videoconference on September 23, 2022

Endorsement

BY THE COURT

[1] The appellant, Jason Sutton, has commenced an appeal in this court from the final order of Justice Vallee dated 26 January 2022 (2022 ONSC 630).

[2] Justice Vallee granted the respondent’s application for retroactive and future spousal support and equalization among other things, in amounts well in excess of the monetary jurisdiction of the Divisional Court, as set out in s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] The panel drew the jurisdictional issue to the attention of the parties in advance of the hearing, and also asked for their position on whether this matter should be transferred to the Court of Appeal under s. 110 of the Courts of Justice Act.

[4] The appellant agreed to the transfer. The respondent did not.

[5] The appellant submits that when he started his appeal he was advised by the Court of Appeal staff that it should be brought in the Divisional Court and when counsel for the respondent advised him the correct jurisdiction was the Court of Appeal, he was advised by Divisional Court staff that the matter should be triaged. Unfortunately, the issue of jurisdiction was not raised at the judicial case conference held on August 31, 2022.

[6] The respondent seeks the dismissal of the appeal and the related fresh evidence motion. Respondent’s counsel submitted that she had emailed the appellant on March 11, 2022, advising him that he had brought his appeal in the wrong court and that the proper jurisdiction was the Court of Appeal. The appellant did not respond. In his submissions, he indicated that he was under the impression that the court would do so because the email was also copied to the court.

[7] Respondent’s counsel submits that her client lacked the funds to challenge the jurisdiction. Further, she submits that the appeal in essence seeks to retry the case and that the respondent has been prejudiced by the delay. The appellant continues to reside in the matrimonial home which was ordered sold by the trial judge in January, 2022. The judgment which grants the respondent an equalization payment and lump sum support from the proceeds of the home is stayed by the appeal.

[8] Hammond v State Farm Mutual Automobile Insurance Co., 2011 ONSC 3192, at paras. 8-9, sets out the test under s.110 of the Courts of Justice Act. In short, three criteria are considered: 1) whether the appellant has a meritorious appeal; (2) whether the respondent will suffer undue prejudice as a result of further delay while the appeal is waiting to be heard by the Court of Appeal; and, (3) whether the appellant moved expeditiously once it was known that the jurisdiction was disputed.

[9] It is apparent that there has been confusion in communications about jurisdiction at both levels of court. This court has no jurisdiction and therefore cannot hear the appeal. Having considered s.110, we conclude that in the circumstances, the appeal should be transferred to the Court of Appeal, We request that the appeal be scheduled as soon as possible. The respondent is free to bring a motion to lift the stay of proceedings in that court. Costs should be left to the disposition of the appeal.

Backhouse J.

Stewart J.

Matheson J.

Released September 26, 2022