COURT FILE NO.: FS-17-415982

DATE: 20231003

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Lee Ann Buffet, Applicant (Responding Party)

AND:

Marcelo R. Lacuesta, Respondent (Moving Party)

BEFORE: Kristjanson, J.

COUNSEL: Vitali Luchko, Counsel for the Applicant

Sandra Lozano, Counsel for the Respondent

HEARD: At Toronto by videoconference June 13, 2023

Endorsement

Kristjanson, J.

[1] The applicant mother brings an application under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) for a divorce and corollary relief (child support and special expenses for the daughter, AB). A Consent Final Order under the Family Law Act, R.S.O. 1990, c. F.3, was issued by the Ontario Court of Justice in May 2015. It provides that no child support, including special expenses, shall be payable by either parent. The Final Order resulted from a complex negotiated settlement in unique circumstances.

[2] The father today asks this Court to dismiss the corollary relief application, or decline to exercise its jurisdiction over corollary relief in the Divorce Act application, so that any variation would be through a motion to change the Final Order in the Ontario Court of Justice. I find that this Court has no discretion to do so. The Superior Court of Justice has jurisdiction to determine the mother’s claim for child support and special expenses under the Divorce Act even though there is a final Order of the Ontario Court of Justice dealing with the same claims under the Family Law Act. Parties have a choice between bringing a motion to change in the Ontario Court of Justice, or beginning a corollary relief claim in the Superior Court of Justice under the Divorce Act. The applicant is entitled to seek child support as corollary relief in this Divorce Act application.

[3] I adopt the comments of Shore, J. in T.M. v. CAS et al., 2023 ONSC 5048 at para. 1: “This case is another example of how the general public would be better served if there was a Unified Family Court in Toronto, instead of a dual/parallel court system.”

Facts

[4] The applicant mother and the respondent father were married in 1999 and separated in 2001. The parties have two children together, AB (now age 16), and CD (now age 22, and no longer a child of the marriage.) In her corollary relief application, the mother seeks child support and section 7 expenses for AB from June 2015.

[5] The Final Order governing child support was issued in the Ontario Court of Justice in May 2015. It provides that the father does not have to pay child support for AB. The Consent Final Order resulted from a complex negotiated settlement:

(a) In 2013, the father and the mother’s parents brought an application as co-applicants in the Ontario Court of Justice, seeking custody of both children.

(b) The mother was the respondent. In her Answer she sought custody of both children and claimed for child support.

(c) From 2013 to 2015, the four parties engaged in lengthy, high-conflict litigation in the Ontario Court of Justice. The proceedings were case managed by Justice S.B. Sherr.

(d) The Ontario Court of Justice case ended with a negotiated settlement between all parties. All the parties signed a Consent.

(e) The Final Order, on consent, was signed by Justice Sherr on May 8, 2015.

(f) The Final Order provided that the eldest child, then age 15, would reside with the co-applicants, the grandparents. The mother was granted sole custody (now decision-making responsibility) of the youngest child, then age 8, with access (now parenting time) afforded to all three applicants (father, maternal grandparents).

[6] The OCJ Final Order also provides:

There shall be no child support payable by either party to the others for the children, namely, AB, and CD, or any other kind of support, including but not restricted to special expenses.

[7] The mother paid no child support or section 7 expenses for the eldest child, CD. The father was not required to pay child support or section 7 expenses for either child, although he states he has paid some section 7 expenses for both children.

[8] In March 2017, the mother began proceedings in the Superior Court of Justice seeking a divorce under the Divorce Act, as well as for corollary relief (table child support and section 7 expenses for AB). The claim for child support is retroactive to two weeks after the Final Order. Although started in 2017, the matter has been largely dormant for years.

[9] The father concedes that this court has jurisdiction but asks this court to exercise its discretion to decline to hear the corollary relief application, or to dismiss the corollary relief application, so that any variation of the existing child support order would be done as a motion to change in the Ontario Court of Justice.

Issues

[10] The motion raises two issues:

(1) Does this court have discretion to decline to hear the request for child support as corollary relief in the Divorce Act application, or to dismiss the corollary relief application, so that any variation of the existing child support order must proceed as a motion to change in the Ontario Court of Justice?

(2) If so, should this court exercise its discretion?

Is There Discretion to Decline to Consider or Dismiss the Corollary Relief Application?

[11] The first issue is whether this court has discretion to decline to hear the request for child support as corollary relief in the Divorce Act application, or to dismiss the corollary relief application, so that any change to the child support order must to proceed as a motion to change in the Ontario Court of Justice.

[12] The Superior Court has no jurisdiction to vary an order of the Ontario Court of Justice. But the doctrine of paramountcy means that the Superior Court does have the jurisdiction to issue a corollary relief order for child support under the Divorce Act which “supplants and supersedes” a child support order made in the Ontario Court of Justice. This issue was settled in Houle v. Trottier, 2012 ONSC 6661 (Div. Ct.). In that case, the father was ordered to pay child support under the Family Law Act pursuant to final orders made in the Ontario Court of Justice. The mother later obtained a divorce in the Superior Court of Justice, but did not seek corollary relief. After the divorce had been granted, the mother brought another application in Superior Court of Justice seeking child support as corollary relief under Divorce Act, and an order that the father maintain health care coverage and life insurance as security.

[13] The Divisional Court in Houle v. Trottier held that an application for corollary relief under the Divorce Act is not an application to vary an order under the Family Law Act, and that: “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.”: (para. 13). The Divisional Court clarified that a claimant had two options: either seeking variation of child support order under s. 37 of Family Law Act in the Ontario Court of Justice, or initiating a corollary relief proceeding under s. 15.1 of Divorce Act in the Superior Court of Justice.

[14] The Divisional Court stated that a party “should not be restricted from seeking relief under the remedial statute most amenable to [their] claim” (para. 13). This comment was made in respect of a claim for life insurance to secure support, which is more narrowly available under the Family Law Act. In this case, the provisions regarding child support and section 7 expenses are practically indistinguishable. The father relies on this, since the relief sought by the mother in the corollary relief application could be obtained on a motion to vary in the Ontario Court of Justice.

[15] The father also relies on cases in which the Superior Court has declined to make temporary orders in a Divorce Act corollary relief proceeding in the face of existing Ontario Court of Justice orders. An example is Brouillette v Desgroseilliers, 2015 ONSC 7070 where the father was attempting to restore unsupervised access to his child, in the context of unresolved criminally proceedings for child luring and making sexually explicit material available to a child. The father’s motion to change in the Ontario Court of Justice was dismissed because there was no material change in circumstances. The father then tried to get the same relief in the mother’s divorce application, in which the mother sought no other relief other than the divorce. Justice Ellies held that the father was not required to demonstrate a material change in circumstances to get an order for custody or access under the Divorce Act that differs from the orders imposed under the Family Law Act by the Ontario Court of Justice, but declined to grant temporary relief in the circumstances.

[16] Ellies J. held in obiter at para. 12:

…Moreover, a divorce court should be reluctant to allow a party to re-litigate issues that have already been decided as between the parties: see Smith v. Smith (1998), 1998 CanLII 29652 (ON SC), 36 R.F.L. (4th) 419 (Ont. Gen. Div.); Rehn v. Rehn (1988), 1988 CanLII 8627 (ON SC), 13 R.F.L. (3d) 440, 1988 CarswellOnt 236, [1988] O.J. No. 522 (Ont. U.F.C.).

The cases cited in Brouillette v. Desgroseilliers on the issue of relitigation and judicial discretion pre-date Houle v. Trottier.

[17] Rehn v. Rehn, 1988 CanLII 8627, is a 1988 decision in which the husband on a divorce application sought to reduce spousal support previously ordered under provincial legislation. Mendes da Costa, J. determined that the pleadings did not ground the claim for reduction in spousal support under the Divorce Act, holding in obiter:

Where a support order is granted under the Family Law Act, 1986, the legislation embodies a clear and coherent provincial policy applicable to its variation. I do not believe that Parliament intended to open the provisions of the Divorce Act, 1985, to an applicant who, by invoking the provisions of the federal Act, deliberately seeks to frustrate this policy. In my opinion, therefore, a court should proceed with caution. Indeed, I am inclined to the view that where, as in the case before me, the payor-spouse is, in reality, seeking to vary an order obtained under provincial law, the application should be dismissed and the matter left to be resolved on a variation application.”

[18] In Smith v. Smith, 1988 CanLII 8627 (ON SC), 1988 CarswellOnt 236, [1988] O.J. No. 522 (Ont. U.F.C.), support orders had previously been made under the Family Law Act. In a Divorce Act application the respondent mother sought to change the orders. While recognizing that this was an originating Divorce Act application, and not a motion to vary, Eberhard, J.:

(a) proceeded on the basis that the order under provincial legislation was “a correct order according to the circumstances which existed” when the order was made, and

(b) stated he would apply criteria consistent with the Family Law Act, since “[t]o do otherwise would be to undermine both the legislative scheme of the Family Law Act and the expectation of the parties herein.”

[19] These cases reveal judicial concern about relitigation, multiplicity of proceedings, and unfairness. The father has made a strong argument about the undesirable effects of allowing a party unhappy with an order of the Ontario Court of Justice to relitigate the same issues as corollary relief in a Superior Court of Justice. The father spent time and money in two years of litigation in the Ontario Court of Justice, and participated in a final negotiated settlement. The parties signed a Consent that was endorsed by the Ontario Court of Justice in the Final Order, and the mother is not requesting any corollary relief in this Court that she did not request or that was not available in the Ontario Court of Justice. But as the decision in Houle v Trottier makes clear, the mother has a right to pursue corollary relief under the Divorce Act.

[20] I find that a judge of the Superior Court of Justice has no discretion to decline to consider, or to dismiss an application for corollary relief under the Divorce Act, and require a claimant to vary an existing child support order under the Family Law Act in the Ontario Court of Justice, simply because of the prior order.

[21] The legal concept of discretion does not mean that judges have untrammeled power to not hear or to dismiss a proceeding where the claimant has a right to bring the proceeding. The concept of judicial discretion is described by Guy Regimbald, now Justice Regimbald, in Canadian Administrative Law (2d ed, LexisNexis, Markham) at page 215:

The legal concept of discretion implies the power to make a choice between alternative courses of action. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion, but the performance of a duty. A decision maker has discretion whenever the effective limits on its power leave it free to make a choice among possible courses of action or inaction.

[22] The Divorce Act, section 15.1, provides for several discretionary decisions, including the power to make interim decisions, and to impose terms and conditions. But it does not confer discretion to not decide an application properly before the Court: it is the duty of a judge to decide an application properly brought before the court.

[23] This does not mean that the negotiated settlement leading to the Consent, and the Final Order of the Ontario Court of Justice, will be disregarded. Section 15.1 of the Divorce Act explicitly provides for consideration of both previous orders and negotiated settlements that do not comply with the Child Support Guidelines. Sections 15.1(5) and (7) provide:

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

[24] Because of these sections, what happened at the Ontario Court of Justice leading to the Consent and Final Order is relevant. Family Law Act sections 33(12)-(15) are essentially identical, and would have bound the judge making the Final Order.

[25] For these reasons, the respondent father’s motion is dismissed.

[26] The parties are encouraged to settle costs. The mother is presumptively entitled to costs as the successful party, although the father may argue otherwise. Her costs submissions (five pages, plus offers to settle, plus costs outline) are due October 11. The father’s costs submissions (subject to the same limits) are due October 18. The submissions are to be sent through the Family Portal, to my attention.

Kristjanson J.

Released: October 3, 2023