Court File and Parties
COURT FILE NO.: FC-22-47 DATE: February 28, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: Lisa Denise Roseanna Joudrey v. Darrell John Joudrey
BEFORE: Justice M. S. James
COUNSEL: Self-represented Applicant Rod Vanier, Counsel for the Respondent
Endorsement
Facts
1This motion is brought by the respondent husband for an order declaring that the Family Division of the Superior Court of Justice does not have jurisdiction to set aside a Consent Final Order made by the New Brunswick Court of Queen’s Bench on November 5, 2020.
2The parties began living together in 2001. They were married in 2016 and separated in March 2020.
3The respondent is a member of the Canadian Armed Forces. He was posted to CFB Gagetown in 2016 and the parties relocated to the Town of Oromocto, New Brunswick, in or about July, 2016.
4The parties were residing in New Brunswick when they separated.
5The applicant moved to Ontario in or about June, 2020. Also in 2020 the respondent was posted to CFB Comox in Comox, British Columbia.
6In September 2020, the applicant commenced an application in New Brunswick for relief under the applicable provincial statutes. She did not claim any relief under the Divorce Act.
7The consent order included a mutual waiver of spousal support.
8The applicant says that she was induced to agree to the consent order due to fraud and misrepresentation by the respondent. In particular, the applicant alleges that the respondent falsely represented that he was about to retire when in fact he continued on as a member of the Canadian Forces. Based on this false representation, the applicant was induced to agree to waive her spousal support claim and the pension division was less than it should have been.
9The present motion is brought within an application commenced by the applicant to set aside the New Brunswick order on the basis of fraud and misrepresentation.
10The respondent says that this court has no jurisdiction to grant the applicant’s request. For the reasons that follow, I agree.
Issue
11Can an Ontario Court set aside an order granted by a court in another province when that order is allegedly tainted by fraud or misrepresentations (including non-disclosure)?
Discussion
12Federal legislation such as the Divorce Act is enforceable by courts throughout the country. Provincial legislation is specific to the province which enacted it.
13Parliament provided a mechanism in the Divorce Act for support orders issued in one province to be varied and enforced by a court in a different province by use of the provisional orders procedure in sections 18 to 20.
14The applicant cannot seek relief under the Divorce Act to vary the New Brunswick order when it was not engaged in the first instance in the New Brunswick proceeding. The New Brunswick order is based on and derives its authority from provincial legislation only.
15In addition to the divorce powers granted by the federal Parliament to courts throughout the country, provincial legislatures have also agreed to mechanisms for enforcing and varying provincial support orders from one province to another that do not involve or rely on the Divorce Act. In Ontario, the applicable statute is entitled the Interjurisdictional Support Orders Act, 2002 (“ISOA”). Other provinces have corresponding or reciprocal legislation.
16In Ontario, where there is no support order in effect, a claimant may ask for an Ontario order that the claimant intends to enforce in a reciprocating jurisdiction. A claimant may also ask that an order from another province be registered and enforced in Ontario if certain conditions are met (see s. 17 ISOA). Once registered, a claimant may request a variation. Usually the respondent has some connection with Ontario. A variation request typically involves proving a material change in circumstances.
17There is limited power enabling an Ontario court to set aside the registration in Ontario of orders from outside Canada but not the order itself (see s. 20 ISOA).
18It is noteworthy that the applicant is not pursing the remedies that may be available under the ISOA. Despite its shortcomings, this technical and highly structured legislation serves an important function by providing a way of obtaining and enforcing support orders throughout the country.
19Typically, the rules of court in each province provide for a court order to be set aside by a judge of the same court if the order was obtained by mistake, inadvertence or fraud. I am not aware of any specific rules on this issue in New Brunswick.
20A court in one province does not have an unfettered right to vary or cancel an order issued by a court in a different province. In my view, this is not a situation that falls within the scope of the inherent jurisdiction of the Superior Court of Justice for Ontario.
21I agree with the applicant that when the respondent responded to her claim in Ontario, it could be argued that the respondent has attorned to the jurisdiction of this court to make the order sought by the applicant. However, attornment cannot create jurisdiction. Attornment usually relates to someone from outside Ontario agreeing to participate in an Ontario proceeding where the Ontario court has the underlying power to hear the matter and the issue is whether any decision should be binding on someone from outside the province.
22The applicant has referred to cases dealing with the conflict of laws between different jurisdictions and the principles of “forum of convenience” that are applied when it is not clear where a particular proceeding ought to be prosecuted. These considerations do not arise in the circumstances present here. These issues relate to where a proceeding should be commenced and heard. In this case, the proceeding has been completed and it resulted in a final order from a New Brunswick court. The reality is that the applicant is looking for an opportunity to re-do the New Brunswick case based on new information. Outside of the specific statutory mechanisms that address interjurisdictional support orders, an Ontario court cannot help the applicant.
23I note that the respondent has not clearly identified the statutory basis for his motion. It appears to me that the request most closely resembles a Rule 16 motion for summary judgment, but he doesn’t say so. It seems clear that he is seeking a final order.
24To summarize, as a result of the way the application is framed- for an order setting aside the New Brunswick order- I conclude that the requested remedy is outside the power of this court to grant.
Disposition
25The respondent’s motion is granted, and the application is dismissed.
Costs
26It is not obvious to me that this is an appropriate case for legal costs to be awarded against the applicant, but if the respondent wishes to make a claim for costs, he may do so within 15 days by submitting a costs outline and the applicant shall have 15 days to respond. The submissions shall be 5 pages or less. No right of reply.
Justice M. S. James Date released: February 28, 2023