NEWMARKET
COURT FILE NO.: CV-14-117882-00
DATE: 20140403
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: NATHAN EDWARD GIBBONS, Applicant
AND:
LINDSAY CAWTHRA MULOCK, Respondent
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
L. Wickham, for the Applicant
G. Karahotzitis, for the Respondent
HEARD: March 20, 2014
ENDORSEMENT
Nature of the Motion
[1] The moving party/respondent, Lindsay Mulock, seeks an order transferring this application to the Ontario Superior Court of Justice Family Court Branch at Newmarket, together with ancillary orders required for such transition.
The Facts
[2] The application was commenced, as noted on its face, under both s. 56.4 of the Family Law Act, R.S.O. 1990, c.F.3, and Rules 14.05(2) and 14.05(3)(d) and (e) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. The substantive relief sought in the application is an order setting aside the marriage contract between the parties dated October 13, 2004. The applicant (“the husband”) also seeks an order declaring that a clause of the marriage contract does not apply to jointly acquired real estate located in East Gwillimbury, Ontario.
[3] Under the heading “Nature of the Application” on page 1, the husband states:
(a) The applicant, Nathan Edward Gibbons (“Nathan”) applies under s. 56(4) of the Family Law Act, to set aside a marriage contract dated October 13, 2014 (the “Contract”) made between him and the respondent, Lindsay Cawthra Mulock (“Lindsay”).
[4] The application goes on to outline the grounds for the application under the following headings: s. 56(4)(a) of the Family Law Act; s. 56(4)(b) of the Family Law Act; and s. 56(4)(c) of the Family Law Act. Paragraph 2(w) of the application reads:
The applicant relies upon the provisions of s. 56(4) of the Family Law Act, R.S.O. 1990, c.F.3 and Rules 14.05(2) and 14.05(3)(d) and (e) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.
Analysis
[5] The husband submits that his application is properly before the court as an application under Rule 14.05(2)(d), involving the determination of rights that depend on the interpretation of a contract, and further under Rule 14(2)(e), as it seeks the declaration of an interest in land. Mr. Wickham for the husband argues that the Family Law Rules, O. Reg. 114/99, as amended, have no application, as this application does not fall within the description of cases set out in Rule 1(2)(b) of the Family Law Rules i.e. Rule 1(2)(b) does not refer to an application to “set aside” a domestic contract. He argues that his client is making no claims under the Family Law Act for equalization, or other property claims, and as he does not seek a divorce, this means that the Family Law Rules do not apply. Mr. Wickham argues that s. 56(4) of the Family Law Act, which permits a court to set aside a domestic contract in accordance with the law of the contract, authorizes resort to an application under Rule 14.05 because it permits an application to a “court”, which is defined in s. 1(1) of the Family Law Act to include both the Family Court of the Superior Court, as well as the Superior Court.
[6] None of these arguments has merit. Counsel for the husband has provided two cases, neither of which applies to support the arguments advanced. Dillon v. Dillon, 2013 ONSC 7679 (S.C.J.) dealt with the issue of splitting a case pursuant to Rule 12(5) of the Family Law Rules for the purpose of obtaining an initial determination regarding the validity of two marriage contracts. Simioni v. Simioni, 2009 934 (ONSC) involved the same issue in the context of a claim regarding the validity of a separation agreement. Neither of these cases is relevant to the issue before the court. The cases stand as authority for the granting of severance in appropriate cases. Severance does not yet apply to this case; although the husband has not yet made a claim for equalization or other property-related relief, a letter dated February 27, 2014 from Mr. Wickham leaves no doubt as to the husband’s intention, if his application is successful, which is to “secure [his] statutory entitlement following marriage breakdown”.
[7] This motion can be resolved wholly by statutory interpretation. The Family Court is a specialist branch of the Superior Court, established pursuant to s. 21.1(1) of the Courts of Justice Act, R.S.O. 1990 c. 43. A full history of the establishment of the Family Court was outlined by Perkins, J. in Holmes v. Holmes, 1997 12252 (ONSC), and its jurisdiction discussed at paragraphs 16 to 23. The statutory provisions having relevance are contained in the Courts of Justice Act:
21.1(3) The Family Court has the jurisdiction conferred on it by this or any other Act.
21.8(1) In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be commenced, heard and determined in the Family Court.
SCHEDULE
- Proceedings under the following statutory provisions:
[8] For the purposes of the case before me, the essential point is that the jurisdiction of the Family Court is that set out in the Schedule under s. 21.8(1). Any proceedings referenced in that Schedule must be commenced, heard and determined in the Family Court as a result of the mandatory language of that provision. That Schedule includes proceedings under the Family Law Act, except Part V, the latter being that part of the Act applicable to dependants’ claims for damages.
[9] Section 56(4) of the Family Law Act provides the statutory authority for the court to set aside a domestic contract. While the respondent is correct that “court” is defined in the Family Law Act as both the Ontario Court of Justice, the Family Court of the Superior Court of Justice or the Superior Court of Justice, this section does not authorize a litigant to choose among those courts to select a forum. The alternatives presented are a necessity; the Family Court of the Superior Court of Justice is not available throughout Ontario, but rather only in certain municipalities as set out in Rule 1(3) of the Family Law Rules. The Regional Municipality of York is one of the municipalities to have a Family Court. Also, as proceedings under Part V of the Family Law Act are not permitted to be brought in the Family Court, the availability of the Superior Court of Justice is a necessity for such claims.
[10] The relief sought in the application in question falls directly under s. 56(4) of the Family Law Act, and the application is made pursuant to that statute. The only court available to the applicant in these circumstances in York Region is the Family Court. The Superior Court has no jurisdiction to hear and determine this application.
[11] From the outset, Mr. Wickham argued that the respondent should be barred from bringing this motion because she had not filed a Notice of Appearance in accordance with Rule 38.7 of the Rules of Civil Procedure. Mr. Karahotzitis advised the court that this had not been done because his client did not want to be seen to attorn to the jurisdiction of this court. I permitted the respondent to proceed, given the nature of the relief sought and the grounds enunciated. It was quite proper for the respondent to avoid filing a Notice of Appearance where her counsel correctly understood that the respondent was proceeding in a forum without jurisdiction to hear the matter in question.
Ruling
[12] The respondent’s motion is granted. An order shall issue in accordance with paragraphs (a) – (h) of the Notice of Motion.
[13] If the parties are unable to agree on costs of the motion they may make brief submissions in writing not exceeding three double-spaced pages, together with any Costs Outline or settlement offers on which they rely. The Respondent’s submissions are due by April 14, 2014 and the Applicant’s submissions are due by April 21, 2014, and any reply, if necessary, by April 23, 2014, to be filed with my judicial assistant in Barrie.
HEALEY J.
Date: April 3, 2014