Court File and Parties

COURT FILE NO.: FS-11-10687 DATE: 20120202

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Katherine-Marie Joanne Houle Applicant

– and –

Steven Christopher Trottier Respondent

Counsel: Dawn Melville, for the Applicant Steven Christopher Trottier, not appearing

HEARD: December 9, 2011

Reasons for Judgment

Nolan J.:

[1] This matter came before this court by way of a motion for summary judgment which, if granted would have the effect of essentially varying the provisions of an order for child support and duplicating an order for custody that was granted in the Ontario Court of Justice. Because the respondent never filed an answer in the application commenced in this court, he was not served with the motion for summary judgment, and thus the motion was unopposed. It is trite law, however, that consent or acquiescence of a party or parties cannot confer jurisdiction and so it is left to the court to be satisfied that the Superior Court of Justice has the jurisdiction to make the order requested.

[2] By way of background, the parties were married on February 28, 1998, and separated in October 2000. There is one child born of the marriage who has lived primarily with the applicant mother since separation and is now about 12 years old. The parties executed a separation agreement in June 2000, whereby the respondent father was obligated to pay $100 per week in child support. He was also required to maintain the child on any medical plans available to him and to continue to name the applicant as the beneficiary of any life insurance policy for so long as he was required to pay child support.

[3] Pursuant to a final order made in the Ontario Court of Justice on January 21, 2002, the applicant mother was awarded custody of the child of the marriage. Thereafter, another proceeding in the same court brought by the respondent resulted in a further order of the Ontario Court of Justice dated October 3, 2002, whereby the respondent father was awarded regular as well as “reasonable computer and telephone” access.

[4] In 2005, the applicant mother sought a divorce in the Superior Court of Justice which was granted on an uncontested basis on July 4, 2005. The divorce order was silent as to any corollary relief including custody, access and child support because no such relief was requested in the application or petition for divorce.

[5] Following a support variation application brought by the respondent father in 2005, a further order was made in the Ontario Court of Justice on October 6, 2005, reducing the amount of child support to be paid by him to $213 per month, based on an annual income of $23,714.

[6] For reasons that are not clear in the application itself, the applicant mother is now seeking an order from the Superior Court of Justice for “interim and permanent” orders for custody and child support as well as heath care coverage and life insurance. For reasons that follow, I find that the Superior Court of Justice is without jurisdiction to make such an order and that the applicant must go to the Ontario Court of Justice for the relief she is seeking.

[7] In support of her position that the Superior Court of Justice had the jurisdiction to entertain this application, counsel for the applicant relied on s. 4 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which provides the following:

4. (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

(b) both former spouses accept the jurisdiction of the court.

(2) Where corollary relief proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a corollary relief proceeding was commenced first has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the second corollary relief proceeding shall be deemed to be discontinued.

(3) Where proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the corollary relief proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

[8] With respect, s. 4 does not deal with the circumstances of the case before me. Rather, s. 4 deals with concurrent proceedings in the Ontario Court of Justice and the Superior Court of Justice.

[9] Counsel also relied on the decision of Pantry v. Pantry, 1986 2537 (ON CA), [1986] O.J. No. 2347, 53 O.R. (2d) 667 (Ont.C.A.). This was an appeal from an order of Master Cork dismissing a petitioner’s motion for an interim order for maintenance and custody. In that case, the parties were married for four years and had one child. In February 1982, the petitioner obtained an order in the County Court pursuant to the Family Law Reform Act, R.S.O. 1980, c. 152, granting her custody of the child of the marriage and support for her and the child in the amount of $125 for her and $225 for the child. Three years later, in June 1985, the petitioner commenced divorce proceedings. In her petition she sought in addition to a decree of divorce, custody of the child and child support, but no support for herself. The petitioner then brought a motion before Master Cork for an order for interim custody and maintenance. In her affidavit in support of the motion, the petitioner swore that the respondent was in arrears under the Family Law Reform Act order. Master Cork dismissed the motion holding that he had no jurisdiction to hear it since the issue of custody and maintenance had been determined in the proceedings under the Family Law Reform Act and that s. 20(1) of that Act prevented him from making any variation in the order under the Divorce Act.

[10] Section 20 of the Family Law Reform Act provided that:

20(1) Where an action for divorce is commenced under the Divorce Act (Canada), any application for support under this Part that has not been determined is stayed except by leave of the court.

20(2) Where a marriage is terminated by a decree absolute of divorce or declared a nullity and the question of support was not judicially determined in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.

[11] After considering s. 20 of the Family Law Reform Act Houlden J.A. found that Master Cork had incorrectly interpreted the relevant litigation. He went on to say that s. 20 did not purport to give paramountcy to an order for support or custody under the Family Law Reform Act made prior to the issuance of the petition over an order for support or custody made in the divorce proceedings. Houlden J.A. went on to say that “the subsection is not intended to limit the powers granted under the Divorce Act; rather, it is intended to limit the powers granted by Part II of the Family Law Reform Act.” The court went on to say at paragraph 7:

If there was a conflict between the support and custody provisions of the Family Law Reform Act and those of the Divorce Act, the provisions of the Divorce Act would, of course, prevail...but as we have said, there is, in our opinion no conflict. The Master has jurisdiction to make an interim order for interim relief under the Divorce Act notwithstanding that a final order for custody or support has been made under the Family Law Reform Act prior to the commencement of the divorce proceedings. This does not mean, however, that he must exercise the jurisdiction. He has a discretion. He might decide that, in all the circumstances, it would be in the best interest of the parties not to make an order for interim relief under the Divorce Act but the order of the Family Law Reform Act should be permitted to remain in force until the hearing of the petition: see Mudrinic v. Mudrinic (1978), 1978 815 (ON SC), 6 R.F.L. (2d) 326 affirmed to Fam.L.Rev.128, where this procedure was followed.

[12] Indeed, the case of Pantry v. Pantry can be distinguished on its facts. That was not a case involving the jurisdiction between a provincial court and a federal court rather it dealt with the paramountcy of the Divorce Act over the Family Law Reform Act in appropriate circumstances. That is not the case before me. In the case before me, the applicant sought her relief for custody, child support, and associated orders in the Ontario Court of Justice in the first instance and all of the proceedings continued in that court including several variations. More significantly, the application or petition for divorce which she commenced in 2005 did not seek any order for custody or child support. If it had, the situation might have been different and the court at that time may have exercised its jurisdiction to grant the relief under the Divorce Act. That is not what happened. The petition for divorce did not seek any corollary relief and the applicant was clearly content to leave the matters of custody and support as they were in the order in the Ontario Court of Justice. Indeed, the respondent sought a variation of that order in 2006 after the divorce order was granted and it does not appear that the applicant objected for any reason to the variation taking place in the Ontario Court of Justice.

[13] I am further supported in my view that the applicant must return to the Ontario Court of Justice for the relief sought by reviewing a number of cases that have addressed the jurisdiction of the Superior Court to vary a final order of the Ontario Court of Justice in the context of a family law dispute.

[14] In Doherty-Mulder v. Mrowietz (2003), 2003 5374 (ON SC), 43 R.F.L. (5th) 313 (Ont. S.C.), an applicant mother sought to vary an order in the Superior Court that had been issued by the Ontario Court of Justice. Although the Superior Court had granted some interim relief prior to the hearing of the subject application, Kruzick J. concluded that he had done so “erroneously”, and that he did not have the authority to vary the final order of the provincial court (Mrowietz, at para. 6). He also noted that the parties had “had a choice with respect to how they would proceed” when the matter was commenced, and that they had opted for the provincial court. It was not now open to them to re-elect the forum for the resolution of their dispute (Mrowietz, at paras. 7-8). Although the Superior Court is able to hear appeals from an order of the provincial court, only the Ontario Court of Justice has jurisdiction to vary those orders (Mrowietz, at para. 10). The application was dismissed.

[15] The proposition advanced by Kruzick J. in Mrowietz was recently affirmed in Maves v. Whitsitt, 2011 CarswellOnt 11869 (S.C.), which involved an ex parte motion by the respondent father to have his daughter returned to Ontario. He also sought an order for custody. The applicant mother, without notice to the respondent, had taken the child and moved to Alberta. A final order of the Ontario Court of Justice dated September 26, 2007, had assigned custody of the parties’ child to the mother, but granted access to the respondent every second weekend.

[16] Although clearly sympathetic to the situation of the respondent, Henderson J. was compelled to dismiss his motion, though he did so without prejudice so as to enable him to file a comparable motion in the Ontario Court of Justice. Citing with approval the decision of Kruzick J. in Mrowietz, Henderson J. determined that, in line with s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the Superior Court did not have jurisdiction to vary the final custody order made by the provincial court (Whitsitt, at paras. 7, 9). Also, being mindful of the fact that the jurisdiction in which the parties resided did not have a dedicated Family Court and thus, that they had had the option of starting their litigation in either the Ontario Court of Justice or the Superior Court of Justice, Henderson J. held that the parties were now “bound to remain in the Ontario Court of Justice” (Whitsitt, at paras. 7-8). It was not open to the Superior Court to “step in” for the purpose of varying the original order (Whitsitt, at para. 8).

[17] The principle espoused in the decisions of Kruzick J. and Henderson J. that the Superior Court does not have jurisdiction to vary a final order of the provincial court has also been expressed in decisions of the Ontario Court of Justice. Following an application by the father in the Ontario Court of Justice for graduated unsupervised access, the mother in Sadowski v. Sadowski, 2011 ONCJ 403, applied to have the proceedings, which had been ongoing in the Ontario Court of Justice, transferred to the Superior Court pursuant to s. 27 of the Children’s Law Reform Act. A final order as to custody had been made by Wolder J. of the Ontario Court of Justice on August 29, 2008. The father alleged that the mother’s application had been made in bad faith and in an effort to thwart his motion for unsupervised access.

[18] In addressing the argument made by the father’s counsel that the Superior Court had no jurisdiction to vary the final order, O’Connell J. accepted that “the case law is clear that the Superior Court has no jurisdiction to vary an order of the Ontario Court of Justice, just as the Ontario Court of Justice could no[t] vary an order of the Superior Court” (Sadowski, at para. 15). However, O’Connell J. acknowledged that were the Superior Court to make an order with respect to corollary issues in its judgment of divorce, that order would have the effect of superseding any comparable order made in the provincial court (Sadowski, at para. 16).

[19] In Gow v. Gow (1989), 1989 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.), Granger J. considered the ability of the former Ontario Supreme Court (High Court of Justice) to vary a separation agreement that had been filed in the Ontario Provincial Court pursuant to s. 35(1) of the Family Law Act, S.O. 1986, c.4. The parties in that case had entered into a separation agreement on August 30, 1984 that purported to address all matters related to custody, access, support and subsequent variation. Some years later, on June 17, 1988, the husband made an application pursuant to s. 37 of the Act to vary a part of the agreement. Looking to the specific language of that provision, Granger J. noted that it allowed an applicant to apply to “the court” to vary a filed agreement. The use of the definite article in s. 37 was found to “restrict ‘court’ to the court which made the order sought to be varied.” (Gow, at p. 445). Granger J. also noted at pp. 445-46 that:

Under s. 35, the separation agreement can only be filed in the Provincial Court (Family Division) and accordingly that is “the court” which is deemed to have made the order that the husband seeks to vary. The Supreme Court of Ontario is without jurisdiction to entertain an application to vary an order which originates from the filing of a separation agreement in the Provincial Court (Family Division).

[20] The rulings in Mrowietz, Whitsitt and Sadowski make clear that the Superior Court of Justice does not have jurisdiction to vary a final order made by the Ontario Court of Justice or to make an order that has the effect of varying an order of that court. This interpretation, at least in respect of Kruzick J.’s decision in Mrowietz, was commented on by Professor James McLeod in his brief summary of the court’s holding in Mrowietz: “Variation. The obvious. An applicant cannot vary an OCJ order in the OSCJ. Really. ... You can only vary an order in the court that made it, or the Superior Court of Justice – Family Court, which is both courts in one.” (James G. McLeod, “Doherty-Mulder v. Mrowietz, 2003 CarswellOnt 3214” Jay McLeod’s This Week in Family Law 42 (21 October 2003) (available on WLeC)).

[21] Although Mrowietz and Whitsitt involved parties that had never been married, this does not alter the authoritative weight to be given to these cases in the context of the case before me. The basis for this conclusion stems from the fact that in the case before me the parties’ divorce order made in this court did not alter the final orders of the Ontario Court of Justice made prior to the divorce; indeed, the provincial court orders have survived the divorce decree, since the latter was silent as to any corollary issues. A reading of s. 36(3) of the Family Law Act, R.S.O. 1990, c. F.3, confirms this approach. That section provides:

If a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms.

[22] The determination that s. 36(3) of the Family Law Act can cause an order made pursuant to that Act to survive an order of divorce where no mention was made in the divorce judgment with respect to corollary issues was confirmed by the Ontario Court of Appeal in Pantry v. Pantry. At pp. 669-70, Houlden J. noted that, under the auspices of s. 20(2) of the Family Law Reform Act, “if no order for support is made in the divorce or nullity proceedings, then ... the order made under the Family Law Reform Act continues in force”. However, this observation was tempered by the court’s suggestion that where there is a conflict between the support and custody provisions of the provincial legislation and the federal Divorce Act, the provisions of the latter statute will prevail (Pantry, at pp. 670).

[23] 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 materials of the applicant in the matter before me do not make clear whether the parties’ separation agreement was ever filed in the Ontario Court of Justice.

[24] It may be that in the context of the matter before me, the applicant mother, cognizant of the Superior Court’s lack of jurisdiction to vary the final orders of the Ontario Court of Justice has filed the application in this court in order to obtain a de novo hearing on the issues of custody and child support. A similar strategy was attempted by the respondent father in Whitsitt. The father’s counsel suggested to the court that if it found that it did not have jurisdiction to vary the custody order of the provincial court, he might simply initiate an entirely new application for custody in the Superior Court. This attempt to circumvent the issue of jurisdiction was deemed by Henderson J. “not to be a solution to the problem, as any Superior Court of Justice order would have the effect of changing the existing Ontario Court of Justice order” (Whitsitt, at para. 10). Effectively, the respondent was “asking to do indirectly what he is prohibited from doing directly” (Whitsitt, at para. 10).

[25] Although the possibility of commencing a de novo application in the present motion appears to be foreclosed by the decision in Whitsitt, O’Connell J.’s analysis in Sadowski is also instructive. As noted above, the mother in that case sought to have the ongoing provincial court custody and access proceedings stayed and transferred over to the Superior Court pursuant to s. 27 of the Children’s Law Reform Act. Her rationale for the requested transfer was that the parties had been unable to resolve their outstanding matrimonial property issues (Sadowski, at para. 8).

[26] While O’Connell J. found the timing of the wife’s application to be “troubling” as it may have been initiated in order to delay a determination of the father’s motion for unsupervised access (Sadowski, at para. 17), she refused to exercise her discretion to lift the stay of proceedings mandated by s. 27 of the Children’s Law Reform Act. Of great import to this decision was the fact that “the outstanding property issues” were “legitimate issues and that the parties’ settlement discussions regard[ing] the property issues seem to have genuinely broken down” (Sadowski, at para. 21). O’Connell J. distinguished the facts of her case from those in Kucera v. Smith, 2010 ONCJ 172, wherein the applicant mother had attempted to re-litigate in the Superior Court the same issue that was before the Ontario Court of Justice (Sadowski, at para. 21). In that case, Zisman J. made an order lifting the stay of proceedings after the wife, who was apparently “dissatisfied with the process” (Sadowski, at para. 18), commenced an application in the Superior Court to set aside a clause contained in the parties’ separation agreement that eliminated the husband’s child support obligations. The same issue, variation of child support, was already being litigated in the provincial court. The fact that the wife did not agree with how the case had been proceeding in the Ontario Court of Justice was held not to warrant a stay of proceedings; indeed, Zisman J. observed at para. 25: “to allow the proceedings to now be halted because the mother, who chose to file her separation agreement in this court, wants to begin the process over again in another court would be inequitable and a waste of resources.”

[27] The fact that O’Connell J. did not exercise her discretion to lift the stay of proceedings in Sadowski does not support the position of the applicant in the case before me that she should be permitted to bring a new application for custody and child support in the Superior Court. Rather, the two situations are easily distinguished on their facts. In Sadowski, the wife sought not only to have the issues of custody and access dealt with in the Superior Court but also issues related to matrimonial property had to legitimately be dealt with, issues that are not within the jurisdiction of the provincial court. By contrast, in the case before me, the applicant seeks only to have the issues of custody and child support determined in the Superior Court. She is not seeking to have this court determine any additional issues that cannot be adjudicated in the Ontario Court of Justice.

[28] By commencing a fresh application in this court for relief that she did not seek in her petition for divorce, the applicant is seeking to either vary the final orders made by the Ontario Court of Justice on January 21, 2002; October 3, 2002; and October 6, 2005 or to obtain a de novo hearing. Those orders granted by the Ontario Court of Justice were not superseded by any order for corollary relief made in the divorce judgment and thus effectively survived the divorce by virtue of the operation of s. 36(3) of the Family Law Act.

[29] Accordingly, the motion for summary judgment and the application are both dismissed without prejudice to the applicant to proceed to vary the child support order in the Ontario Court of Justice, if she is still seeking that relief.

Original signed “Justice Nolan”

Mary Jo M. Nolan Justice

Released: February 2, 2012