Sherry Monique Ridley v. Stefano DeRose, 2015 ONSC 5635

COURT FILE NO.: FS-11-11032

DATE: 20151009

CORRECTED RELEASED: 20151014

2nd CORRECTED RELEASED: 20151117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sherry Monique Ridley

Applicant

– and –

Stefano DeRose

Respondent

Cheryl A. Hodgkin, for the Applicant

Richard M. Gordner, for the Respondent

HEARD: July 31, 2015

Corrected decision: The text of the original judgment was corrected on October 14, 2015 and the description of the correction is appended.

2nd corrected decision: The text of the first corrected judgment was corrected on November 17, 2015 and the description of the correction is appended.

king j.:

Background

[1] The applicant, Sherry Ridley, and the respondent, Stefano DeRose, lived together from 1994 to September 2000. They have two children, Adrian Stephano DeRose (d.o.b. October 26, 1998) and Luca Marko DeRose (d.o.b. March 9, 2000). The applicant had a child prior to her relationship with the respondent. That child is Joshua Jerome Ridley (d.o.b. May 19, 1991). They never married.

[2] Shortly after separation the parties executed a separation agreement dated October 16, 2000 (the “separation agreement”). This is a comprehensive 32-page document with both parties having had independent legal advice.

[3] Significantly, the applicant filed the separation agreement with the Ontario Court of Justice on March 5, 2002. There is no dispute that the agreement is being enforced by the Family Responsibility Office.

[4] The respondent’s monthly income is from a structured auto accident settlement. From time to time prior to 2011 the applicant sought compliance with the separation agreement in the Ontario Court of Justice.

[5] On July 7, 2011, the applicant commenced proceedings in the Superior Court requesting:

Compliance with paragraph 14(c) of the Separation Agreement dated October 16, 2000;
Payment of the child support owing under said Agreement;
Child support for Adrian and Luca.

[Emphasis added.]

[6] This matter has continued in the Superior Court through the various steps in the proceedings, including a case conference and settlement conferences. It was set down for trial and then the date was cancelled.

[7] In addition to the issues referenced in paragraph 5 above, there are other issues pending before this court, such as custody of the children.

[8] Ms. Hodgkin became counsel for the applicant in late 2014.

[9] On June 26, 2015, the applicant filed a notice of motion in this court seeking, inter alia:

Leave to amend the application to include a claim that child support should be retroactive to February 1, 2002;
Leave to seek costs of any medical, dental, drug, optical or other health care expenses; and
Section 7 expenses including, but not limited to, post-secondary education expenses.

[10] These are items that are covered by paras. 14(c) and 23-25 of the separation agreement.

[11] Following issuance of the motion filed June 26, 2015, by the applicant, the respondent retained Mr. Gordner.

[12] The respondent then brought a motion filed July 14, 2015, seeking “an order dismissing all claims in this proceeding regarding child and spousal support as the Superior Court lacks the appropriate jurisdiction to adjudicate these claims.”

[13] The issue of this court’s jurisdiction was argued on July 31, 2015.

[14] On consent, the motion filed by the applicant on June 26, 2015, was adjourned to August 21, 2015. It has since been adjourned sine die.

Issue #1

Does the fact that the applicant filed the separation agreement with the Ontario Court of Justice in 2002 and sought enforcement of same from time to time in that court bar the jurisdiction of the Superior Court of Justice to hear and determine issues relating to the separation agreement?

(i) Statutory Framework

[15] While this matter had been proceeding in the Superior Court for almost four years, new counsel for the respondent asserts that this court is without jurisdiction because of the wording of s. 35 of the Family Law Act, R.S.O. 1990, c. F.3.

[16] That section provides that a party to a domestic contract may file such contract with either the Ontario Court of Justice or the Family Court of the Superior Court of Justice. Once filed with the appropriate supporting affidavit, such contract may be both enforced and/or varied by the court where it is filed.

[17] As well, the Family Law Act provides that a provision for child support may be recalculated “as if it were an order of the court where it is filed” (s. 39(2)(d)).

Analysis

[18] The Parliament of Canada and the Legislative Assembly of Ontario have enacted a statutory framework to deal with the wide range of legal issues arising out of what is broadly referred to as “family law”.

[19] Parliament has given exclusive jurisdiction to the Superior Courts of Justice in each province to grant divorces and decide division of property issues.

[20] For example, an order of the Ontario Court of Justice granting a divorce would be a “nullity”.

[21] However, there are some aspects of family law where there is jurisdictional overlap. For example, matters relating to child support, spousal support, custody and access, and child welfare can be decided in either court.

[22] However, there are important and inherent distinctions between the Ontario Court of Justice and the Ontario Superior Court in respect of family law matters. One of these is the process for appeals, where there is no reciprocity of jurisdiction.

[23] Section 40(1) of the Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, states:

If no provision is made concerning an appeal from an order of the Ontario Court of Justice, an appeal lies to the Superior Court of Justice.

[24] More specifically, matters relating to Part III (support obligations) of the Family Law Act, are covered by s. 48 of the Act which states:

An appeal lies from an order of the Ontario Court of Justice under this part to the Superior Court of Justice.

[25] This framework is relevant because it provides the rationale for the wording of s. 35 of the Family Law Act.

[26] Section 35(1) sets out that a domestic contract (which includes a separation agreement as defined in s. 51 of the Act) may be filed with either the Ontario Court of Justice or the Family Court of the Superior Court of Justice. Once properly filed, such order can be enforced, or varied, as if it were an order of the court where it is filed.

[27] The above tenet is critical. If a separation agreement is properly filed with the Ontario Court of Justice, it becomes an order of that court. Conversely, if filed with the Superior Court of Justice, it becomes an order of this court.

[28] I find that an order of the Superior Court with respect to either compliance with paragraph 14(c) of the separation agreement dated October 16, 2000, or payment of the child support owing under said agreement as set out in the prayer for relief, would have the effect of varying the separation agreement, and, pursuant to s. 35, varying an order of the Ontario Court of Justice.

[29] Once filed in a particular court, the order is not subject to review, revision or amendment by the other court. In my opinion, to permit otherwise would be to invite judicial chaos.

[30] For example, in the case of a separation agreement filed with the Ontario Court of Justice, a decision of that court regarding the agreement can be appealed to the Superior Court. It would be contrary to the intent of s. 35 if a party dissatisfied with a decision regarding a separation agreement filed in the Ontario Court of Justice could elect to either appeal the decision to the Superior Court, or commence a new de novo proceeding on the same issue in the Superior Court.

(ii) Respondent’s Position

[31] The respondent relies significantly on Houle v. Trottier, 2012 ONSC 786, [2012] O.J. No. 505. It should be noted that the decision of the Superior Court in Houle was successfully appealed before the Divisional Court, [2012] O.J. No. 6490. This was not mentioned on the hearing of this motion.

[32] That case involved a motion for summary judgment brought in Superior Court pursuant to a divorce application. Nolan J. found the decision would have the effect of varying the provisions of an order from the Ontario Court of Justice. The judge relied on a number of other decisions to conclude that the Superior Court does not have jurisdiction to vary a separation agreement filed in the Ontario Court of Justice.

[33] In Doherty-Mulder v. Mrowietz, 2003 CanLII 5374 (ON SC), [2003] O.T.C. 764, [2003] O.J. No. 3388 (Ont. Sup. Ct.), after having granted some interim relief, Kruzick J. concluded that he had done so erroneously as the parties had a choice of forum and had proceeded initially to the provincial court. Justice Kruzick stated:

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.

[34] Gow v. Gow H.C.J. (1989), 1989 CanLII 4267 (ON SC), 67 O.R. (2d) 443, [1989] O.J. No. 1 (Ont. Sup. Ct.), is another case cited in Houle that is on point in this matter.

[35] The parties had entered into a separation agreement addressing custody, access, support and variation. The agreement was filed in what was then the Ontario Provincial Court pursuant to s. 35(1).

[36] When the husband attempted to vary part of the agreement in the Supreme Court of Ontario (the predecessor to the Superior Court) pursuant to a provision in that agreement recognizing the right to seek a variation, Granger J. found at page 4:

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).

[37] As earlier indicated, the Divisional Court allowed the appeal in Houle on the basis that it was a Divorce Act proceeding. The court found that rather than being an attempt to vary an Ontario Court of Justice order, the Superior Court proceedings were for an order under the Divorce Act that would supplant and supercede the order under the provincial statute.

[38] Notwithstanding the appeal being allowed, the Divisional Court agreed with paragraphs 14-18 of the decision of Nolan J. and re-affirmed that unless the subsequent matter in the Superior Court is pursuant to the Divorce Act, the court has no jurisdiction to vary an order previously filed in the Ontario Court of Justice.

[39] Specifically, at para. 11 of the decision, Aston J. writes:

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. [Emphasis added.]

[40] If this case had a Divorce Act component, it is likely that the Superior Court would have jurisdiction to make corollary orders. However, that is not the situation in this case.

(iii) Applicant’s Position

a. Fairness

[41] The applicant takes a different view. Counsel made an impassioned and capable argument to suggest this court has jurisdiction to hear and decide the matters set out in the proceedings commenced on July 7, 2011.

[42] Counsel took time to explain the lengthy and arduous process that the parties have followed since this matter started in this court in 2011.

[43] She asserts the manifest unfairness and wasted costs that would flow from a finding that this court is without jurisdiction to deal with child support as well as other issues.

[44] While I certainly have understanding and sympathy for the inconvenience, cost and potential delay that might occur if a finding is made that this court is without jurisdiction, that argument must fail. Based on the wording of s. 35 of the Family Law Act and the case law supporting this finding in matters where the parties are not married and the Divorce Act has no application, I cannot confirm the jurisdiction of the Superior Court.

[45] This is a matter of jurisdiction arising out of a statutory provision – s. 35 of the Family Law Act. It is not a jurisdictional issue to which the parties can wilfully relocate the proceedings.

[46] As Nolan J. stated at para. 1 of the Houle decision:

…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.

[47] Unfortunately for the applicant, the equitable outcome she pursues is not available as this court is without jurisdiction. Equity does not trump jurisdiction. Prima facie, a court must have jurisdiction before it can even consider an equitable remedy. Equitable principles cannot be a means to confer jurisdiction that otherwise does not exist.

[48] Ms. Hodgkin also relies on the wording of paragraph 16 of the separation agreement which states:

CHILD SUPPORT VARIATION

The Ontario Court of Justice shall not have jurisdiction to vary the child support provisions of this Agreement under sections 35 and 37 of the Family Law Act.

[49] She suggests this specific wording ousts the jurisdiction of the Ontario Court of Justice and, therefore, the Superior Court has jurisdiction to deal with the application.

[50] On a first reading, it is tempting to find that this wording distinguishes this matter from the other jurisprudence on point.

[51] However, on closer review, I have concluded otherwise, because:

i) The language of paragraph 16 does not confer default jurisdiction on the Superior Court by “excluding” the Ontario Court of Justice;

ii) The language cannot be interpreted as meaning that even if the agreement is filed in the Ontario Court of Justice, the Superior Court of Justice has jurisdiction to vary the child support provisions pursuant to s. 35 and 37 of the Family Law Act, because the parties excluded the Ontario Court of Justice with respect to the issue of child support variation;

iii) Furthermore, paragraph 16 of the agreement can be interpreted as an acknowledgement that, ab initio, the parties have chosen the Ontario Court of Justice as the forum of choice but have agreed that there will be no variation of child support. The actual interpretation of paragraph 16 is, however, a matter for a justice of the Ontario Court of Justice to decide;

iv) Finally, while paragraph 16 purportedly deals with the jurisdiction of the Ontario Court of Justice to “vary” the child support provisions of the agreement, the application dated September 2011 in the Superior Court seeks “compliance” with the separation agreement.

[52] Accordingly, for all of these reasons, I conclude paragraph 16 of the agreement has no application to this matter.

Ruling on Issue #1

[53] I find that the Superior Court does not have jurisdiction with respect to the application made on July 7, 2011 (Tab 1 of the Continuing Record).

Issue #2

If the Ontario Court of Justice has jurisdiction to deal with the issues of child support and compliance, does the Superior Court still have jurisdiction to hear and determine other issues arising out of the separation agreement dated October 16, 2000?

[54] Counsel for the respondent submits that notwithstanding the jurisdictional issue with respect to child support, all other remaining issues in dispute between the parties can and should remain before this court.

[55] I disagree.

[56] The essence of s. 35 of the Family Law Act is to avoid a bifurcation or multiplicity of proceedings.

[57] The separation agreement reached by the parties with the advice of counsel in 2000 is comprehensive.

[58] As the agreement was filed with the Ontario Court of Justice, that court has exclusive jurisdiction to interpret, enforce and vary all terms and conditions of the separation agreement.

[59] It would be an error of jurisdiction for this court to separate the issues and have parallel litigation continue when there are no Divorce Act issues.

[60] I am somewhat concerned regarding the motives of the respondent to suggest the residual issues can remain before this court.

[61] If that is an attempt to force the applicant to pursue two venue litigation arising out of a single separation agreement as a deterrent to the applicant, I cannot endorse such an outcome.

[62] If this matter proceeds in both courts, the Superior Court could be hearing de novo motions at the same time as it is sitting on appeal of decisions from the Ontario Court of Justice arising out of the same separation agreement. This could result in conflicting interpretations of the same agreement in the Superior Court. That would be perverse to the intention of s. 35.

[63] I do not think it was the intent of the legislature scheme set out in the Family Law Act to create a system of judicial uncertainty that could ensue in such a situation. In fact, I find that s. 35 (and the entire scheme of the other related sections of the Family Law Act) is to prevent that very mischief by conferring jurisdiction on one court or the other in situations where the paramountcy of the Divorce Act does not apply.

[64] For example, as the original separation agreement is comprehensive in nature, which of the two courts will decide where any one issue must go for adjudication? Which court would be the gatekeeper? The legislation makes no such provision and I think it would be an excess of this court’s jurisdiction to permit a bifurcated jurisdiction with respect to the same separation agreement.

Ruling on Issue #2

[65] I find that the Ontario Court of Justice has sole and exclusive authority with respect to all issues arising out of the terms and conditions of the separation agreement dated October 16, 2000, filed with that court on March 5, 2002.

[66] Accordingly, I order the proceedings in file FS-11-11032 transferred to the Ontario Court of Justice pursuant to s. 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended.

Issue #3 - Costs

[67] The parties each seek costs with respect to this motion.

[68] The matter proceeded through this court for almost four years before this issue was raised.

[69] As this motion dealt with an important jurisdictional issue, rather than an adjudication of a substantive issue, it would not be appropriate to award costs.

[70] Furthermore, while the respondent successfully argued that there is no jurisdiction in this court, there was mixed overall success on the overall motion as the file is being transferred to the Ontario Court of Justice, as submitted by the applicant.

Ruling on Issue #3

[71] In the totality of the circumstances of this matter, I make no order with respect to the costs of this motion. Each party will bear their respective costs of the motion.

Original signed by Justice George W. King

George W. King

Justice

Released: October 9, 2015

Corrected Released: October 14, 2015

2nd Corrected Released: November 17, 2015

Corrigendum

In paragraph [9], the first sentence originally read: “On June 25, 2015, the applicant brought a notice of motion in this court seeking, inter alia…. The date has been changed to June 26, 2015 and the word “brought” has been changed to “filed”. Therefore, the sentence now reads: On June 26, 2015, the applicant filed a notice of motion in this court seeking, inter alia….

In paragraph [11], the word “dated” has been changed to “filed” and the date June 25, 2015 has been changed to June 26, 2015. Therefore, the sentence now reads: Following issuance of the motion filed June 26, 2015, by the applicant, the respondent retained Mr. Gordner.

In paragraph [63], the second last line in the paragraph, the word “on” has been changed to “or”. Therefore, the sentence now reads: In fact, I find that s. 35 (and the entire scheme of the other related sections of the Family Law Act) is to prevent that very mischief by conferring jurisdiction on one court or the other in situations where the paramountcy of the Divorce Act does not apply.

2ND Corrigendum

In paragraph [60], the word “applicant” has been changed to “respondent”. Therefore, the sentence now reads: I am somewhat concerned regarding the motives of the respondent to suggest the residual issues can remain before this court.