SUPERIOR COURT OF JUSTICE - ONTARIO
Editor’s note: Corrigendum released on January 12, 2015. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: FS-14-069-01
DATE: September 19, 2014
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Petroskie, DOREEN - Applicant v. KEVIN Petroskie - Respondent
BEFORE: Mr. Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
HEARD: August 29, 2014
ENDORSEMENT
[1] On August 29, 2014 the parties appeared before me on a motion brought by the applicant for an order respecting the sale of the matrimonial home.
[2] Both parties are unrepresented.
[3] During the course of making submissions with respect to the applicant’s motion, the respondent referred to a motion he had made to vary a final order made in the Ontario Court of Justice by Wilson, J on September 17, 2013. He presented to the court a continuing record containing a Form 15, motion to change, issued in the Ontario Court of Justice on July 30, 2014 bearing a first court date of August 18, 2014.
[4] The respondent advised this court that when he appeared on that date in the Ontario Court of Justice in Renfrew, he was advised that as the proceeding had been previously “transferred” to the Superior Court of Justice the motion to change ought to proceed in Superior Court.
[5] I am not aware of any endorsement made by the presiding justice when the motion was apparently spoken to in the Ontario Court of Justice on August 18, 2014.
[6] I advised the respondent I would make enquiries and provide some direction.
[7] It appears that the parties previously prosecuted a proceeding, being OCJ court file number 11-660, to the issuance of a final order, based on minutes of settlement, on September 17, 2013 dealing with custody and support arrangements.
[8] On January 8, 2014 the parties again appeared in the Ontario Court of Justice with their counsel. At that time the lawyers for both parties made motions to be removed as solicitors of record. Wilson, J made an endorsement as follows:
On consent oral motion to remove P. Sammon as solicitor for Mr. Petroskie is granted.
On consent oral motion to remove D. Crosby as solicitor for Ms. Petroskie is granted.
Oral motion of Ms. Petroskie to transfer file to Superior Court forthwith is granted on consent.
[9] Subsequently, the applicant, now unrepresented, commenced a proceeding in the Superior Court of Justice by way of an Application bearing Superior Court of Justice court file number 14-069, for a divorce, support for the children under the Divorce Act, equalization of net family properties and sale of family property.
[10] The Application is scheduled to proceed to trial at the sittings of the Superior Court of Justice in October, 2014.
[11] In his Answer, the respondent requested a divorce, spousal support and exclusive possession of the matrimonial home.
[12] Against this background the respondent now seeks to bring a motion to change the place of primary residence of Paige Petroskie and to discontinue payment of child support for Patrick Petroskie.
[13] I have two questions arising from the endorsement of Wilson, J on January 8, 2014 and subsequent events. Firstly, was there actually a “transfer” to the Superior Court of Justice and secondly, which court ought to deal with the motion to change the previous order of Wilson, J?
[14] Dealing with the first question, the court record discloses that following the issuance of a final order in the Ontario Court of Justice in September 2013, Ms. Petroskie commenced a new proceeding by way of Application in the Superior Court of Justice. This new proceeding includes a request for a divorce, equalization and sale of family property and bears a distinct file number. In my view, there has not been a transfer of the proceedings to the Superior Court of Justice. Instead, the prior proceeding in the Ontario Court of Justice was completed when the final order was made in September, 2013. The Application issued in the Superior Court is a new proceeding, not the continuation or transfer of an existing one.
[15] Dealing with the second question, Section 21.10(1) of the Courts of Justice Act provides that the Family Court may hear and determine an application under an Act to discharge, vary or suspend an order made by the Provincial Court (Family Division), the Ontario Court of Justice, the Superior Court of Justice or the Unified Family Court. The obvious point here is that Renfrew County is not a designated area in which the Family Court has jurisdiction. It appears to me that Section 21.10(1) does not apply to the Superior Court of Justice in Renfrew County.
[16] I note that in the case of Johanns v Fulford, 2014 CarswellOnt 10098, Cohen, J dealt with a similar situation where the parties were prosecuting proceedings in both the Ontario Court of Justice and the Superior Court of Justice in Toronto, which has the same regime as Renfrew County. While the Ontario Court of Justice and the Superior Court of Justice have concurrent jurisdiction in matters concerning custody, access and child support, it does not mean that litigants may proceed in two different courts. As Justice Cohen points out at paras. 30 and 31:
“Concurrent jurisdiction means that, under provincial family law statutes, both courts can deal with issues of custody, access, and support as courts of first instance. It does mean that where a court has made a final order in an application, the motion to change can be brought in another court. It does not mean that an order made in one court can be varied in the other court, where the other court acts as a court of first instance. It does not mean that a party can pursue actions for the same relief in both courts at once. It does not mean that a party can begin an application in one court and bring a motion in another court for the same relief. It does not mean that a party bringing a motion in an application can find the court with the most convenient date and bring the motion in that court.
I recognize that the problem that occurred in this case is rooted in the absence of a unified family court in Toronto, a state of affairs that may have engendered a culture in which concurrent jurisdiction is imperfectly understood or respected. However, the law is clear that a court cannot vary or interfere with the orders of another court of concurrent jurisdiction in circumstances such as these. To ignore the rule invites confusion, contradiction, distraction, inconvenience and expense to the parties, all of which has happened here.”
[17] In my view, the history of these proceedings, the provisions of the Courts of Justice Act and the findings of Cohen, J in Johanns v Fulford, all indicate that a motion to vary the order of Wilson, J dated September 17, 2013 ought to be made and heard in the Ontario Court of Justice. Accordingly, I direct that Mr. Petroskie’s motion to change to be returnable at the Intake Court of the Ontario Court of Justice in Renfrew, Ontario on October 27, 2014 at 1:30 pm.
Mr. Justice Martin James
Date: September 19, 2014
COURT FILE NO.: FS-14-069-01
DATE: September 19, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DOREEN PETROSKIE
Plaintiff
AND
KEVIN PETROSKIE
Respondent
BEFORE: Mr. Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
ENDORSEMENT
Martin J.
Released: September 19, 2014
COURT FILE NO.: FS-14-069-01
DATE: January 12, 2015
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Petroskie, DOREEN - Applicant v. KEVIN Petroskie - Respondent
BEFORE: Mr. Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
HEARD: August 29, 2014
CORRIGENDUM
James J.
[1] This is a Corrigendum making the following amendments to the Court’s Endorsement of September 19, 2014.
[2] In paragraph 9 the word pursuant should be deleted.
[3] In paragraph 16, the case citation number 10094 should be replaced with 10098. As well, in the quoted paragraph 30 of the Johanns v Fulford case the sentences that begins “It does mean that a party” should read “It does not mean that a party”.
[4] In paragraph 17 add the word “be” after the words after the words “dated September 17, 2013 ought to” in the third line.
Mr. Justice Martin James
Date: January 12, 2015
COURT FILE NO.: FS-14-069-01
DATE: January 12, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: DOREEN PETROSKIE
Plaintiff
AND
KEVIN PETROSKIE
Respondent
BEFORE: Mr. Justice Martin James
COUNSEL: Self-Represented Applicant
Self-Represented Respondent
CORRIGENDUM
James J.
Released: January 12, 2015