SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: 6171/10

DATE: January 31, 2013

RE: Kerry Francis Bedard, applicant

AND:

Janice Leah Bedard, respondent

BEFORE: KORPAN J.

COUNSEL:
Stanley G. Mayes for the applicant

George F. McFadyen for the respondent

No one appearing for the Director of the Family Responsibility Office

HEARD: November 1, 2012

ENDORSEMENT

[1] Mr. Bedard brings this motion for a declaration that the Superior Court of Justice lacks jurisdiction to hear and determine the corollary relief proceedings brought by both parties for child support under section 15.1 of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

[2] On November 9, 2012, I endorsed that the Superior Court of Justice has jurisdiction and that my reasons would follow. These are those reasons.

Background

[3] The applicant former husband, Kerry Francis Bedard, and the respondent former wife, Janice Leah Bedard, both wish to change the child support payments they agreed on in the amending agreement to their separation agreement.

[4] In January 1998, Mr. and Ms. Bedard signed a separation agreement. It obliged Mr. Bedard to pay child support to Ms. Bedard for their two children, Kelsey, now age 23 and Haley, now age 20. The child support terms of the separation agreement provide that child support is payable until a child becomes 21 years of age.

[5] Kelsey turned 23 in January 2013. Her post secondary studies extended past her 21st birthday allegedly due to medical issues. She was scheduled to graduate in December 2012.

[6] In December 1998, the parties divorced. The divorce order is silent as to corollary relief. By its terms, the separation agreement survived the divorce and continued in force.

[7] In November 2006, the parties signed an amending agreement to their separation agreement. The amending agreement increased the amount of child support payable by Mr. Bedard. The amending agreement, whether by intention or oversight, did not carry over from the separation agreement the term that child support is payable until age 21. Otherwise, the amending agreement confirms that the terms of the separation agreement remain in full force and effect.

[8] In July 2009, Mr. Bedard unilaterally lowered the child support payments he was obliged to pay under the amending agreement.

[9] On December 4, 2009, Ms. Bedard filed the amending agreement in the Ontario Court of Justice under s. 35 of the Family Law Act, R.S.O. 1990, c. F.3. Once filed, the child support provision contained in the amending agreement could be enforced and/or varied as if it were an order of the Ontario Court of Justice.

[10] In April 2010, the child support payments remained in default and Ms. Bedard filed the amending agreement filed in the Ontario Court of Justice on December 4, 2009 with the Family Responsibility Office (“FRO”) for enforcement.

[11] The FRO commenced enforcement proceedings in the Ontario Court of Justice and in October 2010, Mr. Bedard received notice from the FRO that his income would be garnished.

[12] In November 2010, Mr. Bedard commenced an application in the Superior Court of Justice and in December 2010, Ms. Bedard responded by filing her answer/claim. Both parties seek child support as corollary relief under section 15.1 of the Divorce Act in the Superior Court of Justice.

[13] The “Dispute Resolution” clause in the separation agreement provides that any variation of support after divorce shall be resolved under the Divorce Act by the court that granted the divorce. Paragraph 32(5)(c)(ii) of the separation agreement reads as follows:

32. DISPUTE RESOLUTION...

(5) If it is unreasonable to expect a difference between the parties to be resolved by negotiation or by continued negotiations under subsections 1 and 2 of this section, any difference

(c) relating to the variation of the amount of support to be paid under this agreement or to any terms for payment of support

(ii) if a divorce has been granted, shall be resolved by the Court that granted it, upon application brought by either party under the Divorce Act and to enable that application to be made, the parties hereby consent to the support provisions of this agreement being incorporated in the judgment of divorce;

[14] A settlement conference was held in April 2012.

[15] Submissions were made at the settlement conference relying on the decisions in Gow v. Gow (1989), 1989 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.) and Houle v. Trottier (2012), 2012 ONSC 786, 17 R.F.L. (7th) 178 (Ont. S.C.J.) (since overturned on appeal to the Ontario Divisional Court, 2012 ONSC 6661), that the Superior Court of Justice does not have jurisdiction to vary a final order of the Ontario Court of Justice or a separation agreement filed under s. 35 of the Family Law Act. At the settlement conference the record was endorsed “This court has no jurisdiction to hear the matter because there is an outstanding order in Ontario Provincial Court as a result of filing of a separation agreement pursuant to s. 35 of the Family Law Act. To proceed would be to “vary” an order of that court (Gow v. Gow (1989), 67 O.R. (2d) 443).”

Discussion

[16] Mr. Bedard brings this motion for a declaration that the Superior Court of Justice lacks jurisdiction to hear and determine the corollary relief proceedings for child support under the Divorce Act.

[17] In Gow v. Gow, the husband’s application to the Supreme Court of Ontario was for a variation under s. 37 of the Family Law Act, arising from the filing of a separation agreement in the Provincial Court (Family Division) under s. 35 of the Family Law Act. In Gow, Granger J. held that the court with jurisdiction to make a variation order under s. 37 of the Family Law Act is the court in which the separation agreement is filed under s. 35 of the Family Law Act, in the Gow case, the Provincial Court (Family Division).

[18] In this case neither party is seeking a variation under s. 37 of the Family Law Act. The parties are seeking child support as corollary relief under s. 15.1 of the Divorce Act.

[19] In Houle v. Trottier, 2012 ONSC 6661 (Ont. Div. Ct.), a former wife applied for child support as corollary relief under the Divorce Act when there was a prior Ontario Court of Justice order. The lower court dismissed the wife’s application on the basis that the Superior Court of Justice lacked jurisdiction to hear it, without prejudice to her right to proceed in the Ontario Court of Justice to vary the prior order made in that court under the Family Law Act. The wife appealed. In allowing the appeal and remitting the application back to the Superior Court of Justice for a determination on the merits, Aston J., at paras. 7 to 15 explained as follows:

[7] It is well settled that a former spouse may make an application for corollary relief under the Divorce Act subsequent to a divorce order that was silent on any issues of corollary relief. Moreover, there is no limitation in the Divorce Act, which prevents or restricts former spouses from making an application for corollary relief on the basis that there is a prior order under applicable provincial legislation.

[8] The Hearing Judge erred in law in two respects: (1) she framed the issue as a case involving competing jurisdiction between a provincial court and a federal court; and (2) she failed to appreciate that an application for corollary relief under the Divorce Act is not an application to vary an order under the Family Law Act.

[9] In paragraph 8 of her Reasons, the trial judge states that s. 4 of the Divorce Act deals with concurrent proceedings in the Ontario Court of Justice and the Superior Court of Justice. That is incorrect. Section 4 of the Divorce Act addresses which province has jurisdiction when claims for corollary relief are advanced in the Superior Courts of two different provinces. Only s. 4(1) is applicable in this case. That subsection clearly provides that the Ms. Houle is entitled to bring her application in Ontario as a former spouse ordinarily resident in Ontario at the time she brought her application for corollary relief.

[10] The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court’s child support order under s.37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s.15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.

[11] The Hearing Judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her Reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the Ontario Court of Justice under the Family Law Act. A request to change the order already granted in the Ontario Court of Justice can only be advanced in that court. However, the Hearing Judge should have distinguished the cases she refers to on the basis that the parties in those cases were never married to one another. They did not have an option of proceeding under the Divorce Act and were not seeking any order under the federal legislation. They were attempting to vary an order made under the provincial legislation. The fact that an order made under the Divorce Act may be different from an order previously made under the provincial legislation does not somehow convert an application for corollary relief under that Act into an application to vary the prior order under the provincial legislation.

[12] In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the Ontario Court of Justice under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the Separation Agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.

[13] An order under the Divorce Act does not vary the order under the provincial legislation. Rather, it supplants and supersedes the order under the provincial statute. See Pantry v. Pantry 1986 2537 (ON CA), [1986] O.J. No. 2347 (Ont. CA) at para. 7.

[14] Though the principles applied to the determination of child support under both Ontario’s Family Law Act and the federal Divorce Act are for all practical purposes indistinguishable, it is important to keep in mind that there are differences in the statutory regimes. For example, the statutory definition of a dependent child is significantly different. It may well be that a child is qualified as a dependant for child support purposes under the Divorce Act when such entitlement does not exist under the more narrow definition in the provincial legislation. Similarly, and in particular reference to this case, s.34(2) of the Family Law Act expressly restricts the Ontario Court of Justice from making an order “requiring a spouse who has a policy of life insurance as defined under the Insurance Act to designate the other spouse or child as the beneficiary irrevocably”. There is no similar jurisdictional restriction under the Divorce Act and courts have made such orders as corollary relief under that statute. See for example Laczko v. Laczko, [1999] O.J. No. 2577. The Hearing Judge incorrectly concluded at paragraph 27 of her Reasons that the appellant is not seeking to have this court determine any issues that cannot be adjudicated in the Ontario Court of Justice. Her claim in relation to the life insurance policy is just such a provision. The appellant should not be restricted from seeking relief under the remedial statute most amenable to her claim.

[15] Finally, it is not relevant that the appellant failed to assert a claim for corollary relief under the Divorce Act at the time of the divorce. An application for corollary relief is a stand-alone application that can be made any time on or after the dissolution of the marriage. It is an application that can be made by a spouse or former spouse.

[20] In this case, Mr. and Ms. Bedard chose the option of commencing corollary relief proceedings for child support under the Divorce Act, which can only be brought in the Superior Court of Justice.

[21] The Superior Court of Justice has jurisdiction to hear and determine the corollary relief proceedings.

Conclusion

[22] For these reasons, an order shall issue dismissing paragraphs 3, 4, 5 and 6 of the applicant’s motion dated August 15, 2012.

[23] My initial inclination is that each party should bear his/her own costs of this motion. If the parties cannot agree on costs, I will receive brief written submissions from the applicant within 20 days and from the respondent within 30 days.

“Justice Denise M. Korpan”

Justice Denise M. Korpan

Date: January 31, 2013