Endorsement

Introduction

COURT FILE NO.: FC39/24
DATE: May 7, 2025
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Ghadir Bayrekdar, Applicant
AND: Khaldoun Al Zaher, Respondent
BEFORE: Victor Mitrow
COUNSEL: Li Tian, for the Applicant; Salim J. Khot, for the Respondent
HEARD: Pursuant to written submissions due February 28, 2025

[1] Does a court have jurisdiction to make a final order for corollary relief under the [Divorce Act, R.S.C. 1985, c. 3 (2nd Supp)](https://laws-lois.justice.gc.ca/eng/acts/D-3.4/), prior to a divorce having been granted under the Divorce Act?

[2] Despite this issue having been dealt with by the Court of Appeal for Ontario, there still remains a lack of consensus in reported decisions. There are Divisional Court cases that conflict with decisions from the Court of Appeal for Ontario. This matter deserves attention because a final order for corollary relief made without jurisdiction is a nullity.

[3] This case comes before me, in chambers, based on a documentary record where the applicant seeks a divorce on an undefended basis.

[4] Included in the documentary record is a final order of this court dated July 23, 2024 (“the final order”), made on consent pursuant to a consent endorsement request signed by both parties. This final order was made by a judge at a case conference (“the case conference judge”). The final order deals with all parenting and child support issues on a final basis and states that it is made pursuant to the Divorce Act. Paragraph 17 of the final order states that the divorce shall proceed on an undefended basis.

[5] The final order specified that the parties shall have joint decision-making responsibility of their five children; that the primary residence of the children shall be with the applicant; that the respondent shall have parenting time with the children every weekend from Friday after school until Monday morning; and that all holidays shall be shared. In relation to child support, the order obligated the parties to pay “guidelines child support” pursuant to s. 9 of the child support guidelines, but the final order specified that the parties’ child support obligations were “nil” because the applicant’s and respondent’s annual incomes were $4,032 and $3,390, respectively.

[6] In her request for a divorce, the applicant was relying on the final order, including the child support provisions. Section 11(1)(b) of the Divorce Act creates a duty on the court to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the guidelines, failing which the court is required to stay the granting of a divorce until such arrangements are made.

[7] Prima facie, the final order grants corollary relief pursuant to the Divorce Act before a divorce has been granted under the Divorce Act.

[8] As explained in the reasons below, I conclude that there is no jurisdiction to make a final order for corollary relief under the Divorce Act unless a divorce has been granted under the Divorce Act.

[9] Pursuant to my endorsement dated February 13, 2025, counsel were requested to make written submissions on this issue, and also to address some procedural issues in this case, by February 28, 2025. In the endorsement, counsel were referred to a number of cases, including appellate authority, dealing with the issue of whether a final order for corollary relief could be made prior to the granting of a divorce under the Divorce Act.

[10] Written submissions were received from the applicant’s counsel. The respondent’s counsel did not prepare written submissions on the basis that the applicant has addressed all issues fully, and that the respondent agrees with the applicant’s submissions.

[11] As discussed in more detail below, the parties now acknowledge in the written submissions that they mistakenly advised the case conference judge that the order should be made pursuant to the Divorce Act, not realizing at the time that no claim for a divorce had yet been made. The claim for divorce was made later by an amendment to the application. For reasons stated below, a divorce is granted and the final order is amended to correct a mistake in the issued final order.

[12] Notwithstanding the parties’ misapprehension as to the timing of the claim for divorce, I find that the issue raised should be addressed. It is not unusual in this court to be presented with a draft final order for corollary relief under the Divorce Act where the court has not yet granted a divorce. Also, as noted earlier, this issue merits discussion given the conflicting decisions in Ontario.

The Divorce Act

[13] The following definitions contained in the Divorce Act are relevant:

Definitions

2 (1) In this Act,

• corollary relief proceeding means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a parenting order;
• divorce proceeding means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a parenting order;
• spouse includes, in subsection 6(1) and sections 15.1 to 16.96, 21.1, 25.01 and 25.1, a former spouse;
• variation order means an order made under subsection 17(1);
• variation proceeding means a proceeding in a court in which either or both former spouses seek a variation order.

Jurisdiction in divorce proceedings

3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.

Jurisdiction in corollary relief proceedings

4 (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

(a) either former spouse is habitually resident in the province at the commencement of the proceeding; or
(b) both former spouses accept the jurisdiction of the court.

Jurisdiction in variation proceedings

5 (1) A court in a province has jurisdiction to hear and determine a variation proceeding if

(a) either former spouse is habitually resident in the province at the commencement of the proceeding; or
(b) both former spouses accept the jurisdiction of the court.

Variation order

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;
(b) a parenting order or any provision of one, on application by
(i) either or both former spouses, or
(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
(c) a contact order or any provision of one, on application by a person to whom the order relates.

[14] The present case, after the application was amended, constitutes a “divorce proceeding”.

Jurisprudence

[15] The guiding principle from the cases discussed below, in particular appellate authority that is binding on this court, is that the Parliament of Canada’s jurisdiction over child support, spousal support and parenting orders is ancillary to its legislative jurisdiction over divorce, and that the power to make corollary relief orders for parenting, child support and spousal support under the Divorce Act is exercisable only if a Canadian divorce has been granted.

[16] There are two important decisions on point from the Court of Appeal for Ontario: the often-cited and leading case of Rothgiesser v. Rothgiesser; and Okmyansky v. Okmyansky, 2007 ONCA 427 [“Rothgiesser” and “Okmyansky”].

[17] While both Rothgiesser and Okmyansky dealt with foreign divorces, the analysis from those cases is applicable to situations which do not include a foreign divorce, as discussed below.

[18] In Rothgiesser, the parties were divorced pursuant to a final order of divorce made in South Africa in 1985. The final order of divorce incorporated, as an order of the court, terms of settlement reached by the parties including custody and access of their children, child support and spousal support. Soon after the divorce, both parties relocated separately to California, and in 1987 the husband relocated to Toronto.

[19] In September 1990, the youngest child moved to Toronto to live with the husband. The husband brought an application for custody pursuant to the Children's Law Reform Act, RSO 1990, c C.12 (the “CLRA”), which was resolved on consent pursuant to an order made in September 1990 (the “1990 order”). The 1990 order also included provisions varying the South African order relating to the husband’s obligation to pay spousal support.

[20] In 1998, the husband brought a variation application in Ontario under the Divorce Act to terminate his obligation to pay spousal support pursuant to the 1990 order. The husband’s variation application was granted pursuant to an order made in November 1998 (the “variation order”).

[21] In her appeal of the variation order, the wife argued that the court erred in granting a variation of the 1990 South African divorce order because the Ontario court did not have jurisdiction over the matter.

[22] Regarding jurisdiction in relation to the issue of spousal support, the Court of Appeal for Ontario found: that the 1990 order dealing with spousal support was a nullity; that a court only has jurisdiction to hear and determine a corollary relief proceeding (in this case, spousal support) if a Canadian court has granted the parties their divorce; and that the variation order (which varied an order that was a nullity) must be set aside: paras. 28, 39 and 43.

[23] In the context of a support order, at para. 46, the court refers to the opinions of professors Castel and Hovius for the principle that the court’s jurisdiction to order support under the Divorce Act is ancillary to, and dependent on, a Canadian divorce having been granted:

[46] Professor Castel in Canadian Conflict of Laws, 4th ed. (Toronto: Butterworths, 1997) at p. 417, states that pursuant to the Divorce Act "the right to corollary relief comes into existence at the time of the divorce". Professor Hovius in his text Family Law: Cases, Notes & Material, 4th ed. (Toronto: Carswell, 1996) at p. 482, states that "[a]s the Parliament of Canada's jurisdiction over support is ancillary to its legislative jurisdiction over divorce, the power to order support under the Divorce Act will cease if the court refuses to grant the divorce". The inference is that a Canadian divorce must be granted before an Ontario court can order support under the Act. … [My emphasis]

[24] The court in Rothgiesser points out that when the 1990 order was made, a previous version of s. 4 of the Divorce Act was in force, which required a corollary relief proceeding to be heard by the same court which granted the divorce. At that time, s. 4 stated: “A court has jurisdiction to hear and determine a corollary relief proceeding if the court has granted a divorce to either or both spouses”.

[25] In 1993, s. 4 was amended. It is noted that the 1993 version of s. 4 was the same as the current version, with the exception of s. 4(1)(a). The 1993 version uses the phrase “ordinarily resident” whereas the current version states “habitually resident”.

[26] Noting that the current version and the 1993 version are very similar, it is important that in Rothgiesser, the court rejected any suggestion that the 1993 amendment was sufficiently broad to allow corollary relief to be ordered under the Divorce Act where the parties had obtained a foreign divorce. The court reiterated the principle that any attempt to make orders for corollary relief in the absence of a Canadian divorce would encroach on provincial jurisdiction.

[27] The foregoing discussion regarding the effect of the amendment to s. 4 is dealt with at paras. 58 and 59 in Rothgiesser (and the reference to the “Lang order” is a reference to the 1990 order):

[58] In these reasons, I referred to s. 4 of the Divorce Act as it read in 1990 at the time of the Lang order. I also mentioned that s. 4 was amended as of March 25, 1993. I repeat the section as it read prior to and since the amendment:

4. A court has jurisdiction to hear and determine a corollary relief proceeding if the court has granted a divorce to either or both former spouses.

4(1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or
(b) both former spouses accept the jurisdiction of the court.

In his textbook earlier referred to, Professor Payne wrote that the amendment "appears sufficiently broad to enable a foreign divorcee to institute proceedings for support and custody under sections 15 and 16 of the Act, if he or she has established ordinary residence in a Canadian province." The implication of this view is great and thus merits correction.

[59] In my view, the amendment did no such thing. Whereas Parliament had previously limited jurisdiction to the court that had granted the divorce, the amendment extended the jurisdiction by authorizing a Canadian court to hear a corollary relief proceeding if either spouse were ordinarily resident in the province or if both former spouses accepted the jurisdiction of the court. Parliament did not intend to give Canadian courts jurisdiction over foreign divorces. As Professor Hovius correctly noted, Parliament's jurisdiction over support is ancillary to its jurisdiction over divorce pursuant to s. 91 of the Constitution Act, 1867. Any attempt to deal with support obligations in the absence of a Canadian divorce would encroach on provincial jurisdiction (s. 92"Property and Civil Rights"). This assertion also supports and strengthens the conclusion that I have reached on the issue of the jurisdiction of an Ontario court to make an order in the absence of a Canadian divorce. [My emphasis]

[28] Okmyansky also involved a foreign divorce. The parties were divorced in Russia. After the divorce was granted, the former wife commenced an application in Ontario that included a claim for spousal support under the Divorce Act.

[29] The conclusion reached by the court in Okmyansky, similar to Rothgiesser, was that there was no jurisdiction to make an order for spousal support pursuant to the Divorce Act.

[30] Okmyansky referred to the discussion in Rothgiesser that the 1993 amendment to s. 4 of the Divorce Act did not give Canadian courts jurisdiction under the Divorce Act to deal with support obligations in the absence of a Canadian divorce. The court in Okmyansky stated at para. 26:

[26] This court's conclusion in Rothgiesser v. Rothgiesser, supra, concerning the jurisdiction to make a corollary relief order under the Divorce Act in the face of a foreign divorce was premised on the wording of s. 4 of the Divorce Act in 1990, i.e., only the court that granted the divorce had jurisdiction to hear a corollary proceeding. However, at paras. 58-59, this court went on to consider the wording of the current version of s. 4 (which provides a court has jurisdiction to hear a corollary relief proceeding where either spouse is ordinarily resident in the province) and concluded that the current version of s. 4 does not give Canadian courts jurisdiction "to deal with support obligations in the absence of a Canadian divorce. …" [My emphasis]

[31] The reasons in Okmyansky also included discussion of the legislative history of the Divorce Act (at para. 32). After this analysis, the court concludes that the “obvious purpose” of the 1993 amendment was to allow a former spouse to commence a corollary relief proceeding in the province where he or she resides, rather than returning to the court in the place where the divorce was granted; and that there was nothing in the legislative history to indicate that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to hear and determine a corollary relief proceeding under the Divorce Act following a foreign divorce. The court stated at para. 33:

[33] In my view, when considered in the light of the legislative history of the jurisdiction provisions in the Divorce Act, the obvious purpose of the 1993 amendment was to bring the jurisdiction to hear and determine a corollary relief proceeding in to line with the jurisdiction to hear and determine a variation proceeding. As a result, rather than having to return to the court in the place where the divorce was granted, a former spouse wishing to commence a corollary relief proceeding can do so in the province where he or she is ordinarily resident. I see nothing in the legislative history of the Divorce Act to indicate that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction.

[32] In viewing the Divorce Act as a whole, the court concluded, in Okmyansky, that the very description of orders for custody, spousal support and child support as “corollary relief” confirms Parliament’s intention that those orders are incidental to the granting of a divorce in Canada. The court stated at para. 38:

[38] I find further support for my conclusion that s. 4 does not permit a former spouse divorced pursuant to a foreign divorce decree to commence a corollary relief proceeding under the Divorce Act based on a consideration of the Act as a whole. In my view, the very description of orders for spousal support, custody and child support as "corollary relief" confirms Parliament's intention that these orders are intended as forms of relief that are incidental to the granting of the divorce. If a divorce was not granted in Canada, it is difficult to see how the making of a support order could properly be viewed as "corollary relief". [My emphasis]

[33] In Zacks v. Zacks, the Supreme Court of Canada examined the legislative history of the predecessor Divorce Act, including the meaning of s. 11(1) which allowed a court to make orders for corollary relief “… upon the granting of a decree nisi.” The Supreme Court of Canada concluded that it was only when a divorce was granted that the court acquired the necessary jurisdiction to deal with corollary relief, which in that predecessor Divorce Act, included orders in relation to alimony, maintenance and custody of children. The court stated at para. 57:

57 The meaning of the word, as used in s. 11(1), must be determined in the light of the fact that legislation by Parliament in relation to alimony, maintenance and the custody of children would only be within its powers if associated with and as a part of legislation in relation to the subject matter of divorce. It is my opinion that when it was provided that the court could deal with those matters "Upon granting a decree nisi of divorce" it was meant that it was only when a divorce was granted that the court acquired the necessary jurisdiction to deal with those subjects. The words did not mean that those subjects could only be dealt with at exactly the same time that the decree nisi for divorce was granted.

[34] A decade after Okmyansky was decided, Cheng v. Liu, 2017 ONCA 104, involved a case where the parties had been divorced in China. The Court of Appeal for Ontario framed one of the issues as whether an Ontario court had jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction: para. 26.

[35] The litigation history was somewhat complicated because the wife’s Ontario divorce application, which included corollary relief claims for custody, spousal support and child support, was stayed to allow the husband to pursue a divorce and other family law claims in China. The Chinese court granted a divorce and also granted custody of the child to the wife; but the Chinese court declined to deal with support and equalization, directing instead that those issues should be dealt with in Canada. Thereafter, the stay of the Ontario application was lifted and the application proceeded to trial.

[36] The Court of Appeal for Ontario, in Cheng, agreed with the appellant husband that the trial judge erred in finding jurisdiction under the Divorce Act, and that the trial judge also erred in distinguishing Okmyansky [1]: para. 3.

[37] Given that child support could be dealt with under the Family Law Act, RSO 1990, c F.3, the remaining claim for corollary relief under the Divorce Act was the wife’s claim for spousal support.

[38] The court in Cheng found that Okmyansky is clear and unequivocal authority that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding without a divorce having been granted in Canada. The court states at para. 28:

[28] Okmyansky is clear and unequivocal authority that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce. Simmons J.A. held, at para. 38, that without a divorce granted in Canada, a support order could not properly be viewed as "corollary relief". [My emphasis]

[39] The court adds in Cheng that various courts have followed Okmyansky in the last ten years, citing several cases, at para. 29:

[29] Various superior court cases have followed Okmyansky in the last ten years. Thus, the court in Stefanou v. Stefanou, 2012 ONSC 7265, 47 R.F.L. (7th) 385 (Ont. S.C.J.) held, at para. 170, that "[i]f the divorce is not granted pursuant to the Divorce Act, then there is no divorce to which corollary relief may be incidental". The British Columbia Court of Appeal came to the same conclusion in V. (L.R.) v. V. (A.A.), 2006 BCCA 63, 52 B.C.L.R. (4th) 112 (B.C.C.A.), holding that the Supreme Court of British Columbia has no jurisdiction under the Divorce Act to grant corollary relief founded upon a foreign divorce.

[40] Zorab v. Zourob, 2021 ONSC 6552 (Ont. S.C.J.), was a proceeding before Tobin J. involving the mother’s motion to change parenting provisions contained in a final order. When asked at the beginning of the trial, both counsel advised the court that the proceeding was under the Divorce Act. However, the final order containing the parenting provisions included a term that the parties’ divorce was to proceed on an uncontested basis; a divorce was granted approximately two-and-a-half months following the final order.

[41] Tobin J. states at para. 9:

a. that the parties were not divorced at the time the final order was made;
b. as a result, at that time, the court could not have made a final order for corollary relief under the Divorce Act; and
c. that a final order for corollary relief under the Divorce Act cannot be made until a divorce is granted, citing authority that included Rothgiesser and Okmyansky.

[42] In the Franks & Zalev family law newsletter “This Week in Family Law”, dated February 24, 2020, the authors refer to the “Rothgeisser Rule” in Ontario. The authors then state, in part:

In Rothgeisser the Ontario Court of Appeal held that, a court in Canada can only award Corollary Relief that is, in fact, corollary to a Canadian divorce, and that absent a Canadian divorce, there can be no order for Corollary Relief under the Divorce Act. This is because of the division of powers in the Constitution. Under the Constitution, the Federal Government may legislate over "marriage and divorce" [s. 91(26)] and the provinces can legislate over "property and civil rights in the province" [s. 92(13)]. In Papp v. Papp, 1969 CarswellOnt 963 (Ont. C.A.) the Ontario Court of Appeal held that the Federal government was only competent to legislate in the area of support and custody (what otherwise seem to be property and civil rights in the province) if such laws were corollary to the granting of a divorce. It is a constitutional imperative. Then, in Rothgiesser, the Ontario Court of Appeal clarified that it must be corollary to a Canadian divorce. …

[43] Other provinces have adopted an approach similar to Rothgiesser and Okmyansky, although that is not the case in the province of Quebec:

a. In V.(L.R.) v. V.(A.A.), 2006 BCCA 63, the question posed by the British Columbia Court of Appeal relating to the Divorce Act was whether the Divorce Act empowers a superior court in Canada to make a child support order in favour of a child habitually resident in this jurisdiction whose parents were divorced by order of a foreign court: para. 39. (In that case, the parties were divorced in the United States.)

b. The British Columbia Court of Appeal concludes that the answer to the question posed is “no”: para. 61. In reaching this conclusion, the court reviewed the history of the Divorce Act, much like that conducted in Okmyansky. The British Columbia Court of Appeal also addressed at para. 59 the 1993 amendment to s. 4, concluding that there was nothing in the amendment to lead to the conclusion that Parliament intended to give jurisdiction to a Canadian court to grant corollary relief based on a foreign divorce.

c. The decision of the British Columbia Court of Appeal in V. v. V. was discussed in Okmyansky. The court in Okmyansky specifically preferred the reasons of the British Columbia Court of Appeal over the decisions of the Quebec Superior Court and the Quebec Court of Appeal, which came to opposite conclusions. The following is stated in Okmyansky at paras. 39, 40:

[39] The British Columbia Court of Appeal recently considered the jurisdiction of a Canadian court to hear and determine a corollary relief proceeding under the Divorce Act following a foreign divorce in V.(L.R.) v. V. (A.A.), (2006) 2006 BCCA 63, 264 D.L.R. (4th) 524 (B.C.C.A.). After considering the legislative history of the jurisdiction provision in the 1968 Act and the 1985 Act, the court concluded that s. 4 of the Divorce Act does not confer jurisdiction on a Canadian court to hear and determine a corollary relief proceeding in such circumstances.

[40] The Quebec Superior Court and the Quebec Court of Appeal each reached the opposite conclusion in M.(O.) v. K.(A.), 9 R.F.L. (5th) 111 (C.S.Que.), and M.(G.) c. F.(M.A.), [2003] R.J.Q. 2516 (C.A.Que.). However, these courts did not review the legislative history of the relevant provisions in either of those decisions and I prefer the reasoning of the British Columbia Court of Appeal for the reasons set out above.

d. In Leonard v. Booker, 2007 NBCA 71, the New Brunswick Court of Appeal dealt with an appeal where the lower court had invoked the Divorce Act in varying a foreign divorce decree regarding child support and custody: para. 1. In allowing the appeal on the basis that there was no jurisdiction to make the order, the New Brunswick Court of Appeal adopted the reasoning set forth in Rothgiesser as the applicable law in New Brunswick: para. 8. The court also referred to the British Columbia Court of Appeal decision in V. v. V., at paras. 14–16.

e. The Nova Scotia Court of Appeal in Armoyan v. Armoyan, 2013 NSCA 99, in a case where the parties were divorced in Florida, cited Rothgiesser and V. v. V., and came to a similar conclusion that there is no jurisdiction in those circumstances to make orders for corollary relief under the Divorce Act: paras. 248–250.

f. Kalsi v. Kalsi, 1992 ABCA 182, is a brief decision of the Alberta Court of Appeal that does not involve a foreign divorce. In that case, both parties had claimed a divorce and corollary relief pursuant to the Divorce Act. The Alberta Court of Appeal set aside an order for summary judgment that granted corollary relief on the basis that there was no jurisdiction to order corollary relief because at the time of the order, neither party had been granted a divorce: para. 4.

Discussion—Cases Finding That There Is Jurisdiction to Order Corollary Relief Under the Divorce Act Prior to the Granting of a Divorce

[44] The discussion below includes decisions where the court has found that a final order for corollary relief under the Divorce Act can be made prior to the granting of a divorce. The cases discussed below include decisions by the Divisional Court.

[45] In Mattina v. Mattina, 2018 ONSC 1569, the Divisional Court found that it did not have jurisdiction to hear an appeal and transferred the appeal to the Court of Appeal for Ontario. The proper appeal route was dependent on whether the final order being appealed was made pursuant to the Divorce Act, in which case the appeal was to the Court of Appeal for Ontario; or whether the final order was made pursuant to the CLRA, in which case the appeal was to the Divisional Court.

[46] The final order, which was made pursuant to a motion for summary judgment, dealt only with parenting issues and did not identify the statute under which the order was made. This final order was made in the Family Court branch of the Superior Court of Justice. It is apparent from a reading of the reasons in Mattina v. Mattina that a divorce had not been granted.

[47] On motion in the Divisional Court in Mattina v. Mattina, a single judge of that court found that the final order had been made pursuant to the CLRA, and that the Divisional Court had jurisdiction to hear the appeal.

[48] However, the full panel of the Divisional Court disagreed with the motion judge, and found that the final order had been made under the Divorce Act, for reasons that included the following:

a. In their pleadings, both parties sought custody and access under the Divorce Act and the CLRA, and a divorce claim had been made. As a result of the divorce claim, any application for custody or access is stayed under the CLRA, except by leave of the court, pursuant to s. 37 of that Act: paras. 37, 38;

b. The court cited Bridgeman v. Balfour, 2012 ONSC 6583, at paras. 8–11, stating that that case correctly concluded that when parties made claims under the CLRA and Divorce Act, the custody and access claims are governed by the federal act, and that claims under the provincial act are stayed pursuant to s. 27: para. 38;

c. The court noted that the parties did not request leave of the court to deal with the case under the CLRA, and therefore the application under that Act remained stayed: para. 39;

d. The Divisional Court characterized the motion judge’s reasons in Mattina v. Mattina as flawed. In discussing the motion judge’s conclusion that a final order for custody or access could not be made until the divorce was granted, the Divisional Court stated at para. 41:

[41] First, the motion judge found that a final order for custody or access cannot be made until a divorce is granted. There is no authority to support this statement and it is inconsistent with the Divorce Act.

e. At paras. 42 and 43, the court stated that under s. 16 of the Divorce Act (which was the corollary relief section then in force relating to custody and access), a final order can be made whether the parties are divorced or not:

[42] Section 16 of the Divorce Act allows the court to make interim and final custody and access orders as follows:

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

[43] An order under s. 16 can be made whether the parties are divorced or not. This is clear from the meaning of spouse as set out in s. 15 as follows:

In sections 15.1 to 16, spouse has the meaning assigned by subsection 2(1), and includes a former spouse.

[49] As noted earlier, the Divisional Court in Mattina v. Mattina relied on Bridgeman v. Balfour. In that case, there were motions to change a final order. As a result of procedural issues, it was necessary for the court to decide whether the final order was made pursuant to the CLRA or the Divorce Act.

[50] A final order had been made in 2006 dealing with custody and access. That order was made in a divorce proceeding commenced in Ontario. The final order stipulated that the request for divorce would proceed on an uncontested basis on the ground of one year’s separation. A divorce was granted subsequently, in June 2006.

[51] Although the final order for corollary relief was made prior to the granting of a divorce, the court in Bridgeman v. Balfour relied on s. 16 of the Divorce Act (as it then read) in concluding that a final order for corollary relief could be made in a divorce proceeding prior to the granting of a divorce, provided that a divorce order is in fact subsequently granted. The court stated in part, at para. 10:

… Section 16 of the Divorce Act provides that a court may make an order respecting custody of or access to a child on application by either or both “spouses.” It is significant that this provision does not refer to “former spouses,” as in section 17 dealing with variation proceedings, or in section 4 dealing with jurisdiction in separate corollary relief proceedings. The use of the term “spouses” in section 16 reflects an intention that custody and access orders can be made pursuant to the Divorce Act in the context of a divorce proceeding prior to the divorce being made, provided that a divorce order is in fact subsequently granted.

[52] In both Mattina v. Mattina and Bridgeman v. Balfour, reliance is placed on s. 16 (as it read at the time) in concluding that a final order for corollary relief under the Divorce Act can be made prior to the granting of a divorce.

[53] Section 16 authorized final and interim corollary relief orders for custody and access. That section was repealed and replaced by s. 16.1, which deals with parenting and which came into force March 1, 2021. [2] The Divisional Court in Mattina v. Mattina, at para. 42 [reproduced above], refers specifically to ss. 16(1) and 16(2). The analogous sections in the current Divorce Act are ss. 16.1(1) and 16.1(2):

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or
(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

[54] In Bridgeman v. Balfour, the court concluded at para. 10 [reproduced above], that it was “significant” that s. 16 referred only to “spouses”, and not “former spouses”, as in s. 17 dealing with variation or s. 4 dealing with corollary relief. From this, the court concluded that the term “spouses” in s. 16 reflects an intention that custody and access can be made pursuant to the Divorce Act prior to a divorce being granted.

[55] Respectfully, despite the foregoing analysis, it is noted that s. 15, then in force [reproduced above from Mattina at para. 43], extended the definition of “spouse” in ss. 15.1 to 16 to include a “former spouse”.

[56] As noted earlier, the Divisional Court in Mattina, at paras. 42 and 43, in relation to s. 16, concluded that an order under s. 16 can be made whether the parties are divorced or not, stating that this is “clear” from the meaning of “spouse” as set out in s. 15.

[57] As discussed above, s. 16 that was in force prior to March 1, 2021, has been replaced by s. 16.1. The now-repealed s. 15, which had extended the definition of “spouse” to include former spouses, has been replaced by amending the definition of “spouse” in s. 2(1) to include a “former spouse” for the purpose of various sections, including ss. 15.1 to 16.96, which are all the sections dealing with corollary relief.

[58] The corollary relief sections also include s. 15.1 (child support) and s. 15.2 (spousal support). These two sections, which have remained unchanged for many years, and s. 16.1 dealing with parenting (formerly s. 16) apply where spouses are still married (divorce proceeding), and those same sections also apply to former spouses where there is a corollary relief application or a variation proceeding pursuant to s. 17.

[59] The conclusion in Mattina v. Mattina and Bridgeman v. Balfour that s. 16 of the Divorce Act (now s. 16.1)—and by inference, ss. 15.1 and 15.2—constitutes statutory authority to make a final order for corollary relief prior to the granting of a divorce must be examined in light of the decisions discussed earlier from the Court of Appeal for Ontario and the appellate courts of other provinces. There is no suggestion in any of those appellate decisions, some of which undertook a discussion of the legislative history of the Divorce Act, that s. 16 (or ss. 15.1 and 15.2) enable a court to make a final order of corollary relief prior to the granting of a divorce under the Divorce Act. Also, no authorities were cited in Mattina v. Mattina or Bridgeman v. Balfour to support the conclusions reached regarding s. 16.

[60] In Bridgeman v. Balfour, at para. 10 [reproduced above], the court’s qualification that a final order for corollary relief could be made prior to a divorce “… provided that a divorce order is in fact subsequently granted” does not address the situations where a divorce claim is never pursued or is stayed (for example, pursuant to s. 11(1)(b)) or is dismissed. None of the appellate authorities cited earlier in these reasons discuss the option of a final order for corollary relief being made “conditional” on the subsequent granting of a divorce.

[61] The Divisional Court, Young v. Vanleer, 2020 ONSC 3606, was faced with a preliminary issue, similar to Mattina v. Mattina, whether the court had jurisdiction to hear the appeal.

[62] In that case, the trial judge made a final order that included provisions dealing with custody, access and child support; also, included in the final order was a provision severing the divorce claim from the corollary relief and allowing either party to request a divorce by way of affidavit. [3]

[63] There was no issue that the claims at trial included claims for a divorce and corollary relief: para. 4.

[64] The Divisional Court found that the facts “fall squarely within the analysis” by the Divisional Court in Mattina v. Mattina, and in particular para. 49. The Divisional Court therefore transferred the appeal to the Court of Appeal for Ontario. The reasons of the Divisional Court in Young v. Vanleer were brief, and the only authority cited was Mattina. No reference was made to the appellate authorities from the Court of Appeal for Ontario and other provincial appeal courts.

[65] In both Mattina v. Mattina and Young v. Vanleer, after those cases were transferred by the Divisional Court, the Court of Appeal for Ontario heard both appeals on the merits [4] with no discussion in both appeals about the issue of whether a final order for corollary relief could be made prior to the granting of a divorce, or about the Divisional Court’s analysis in transferring the case to the Court of Appeal for Ontario.

[66] A more recent decision of the Divisional Court with similar issues as the other two Divisional Court cases is Buhlmann v. Buhlmann-Miyake, 2024 ONSC 5265. This is a decision of a single judge of the Divisional Court.

[67] In this case, the proceeding leading to the final order was a divorce proceeding. However, the trial judge severed the granting of the divorce from the corollary relief. The Divisional Court noted that the trial judge, in the reasons for judgment, referred to various sections in the Divorce Act, including the best interests factors in s. 16, and the definition of “child of the marriage” in s. 2; also, the financial issues of spousal support and child support were dealt with pursuant to the applicable sections of the Divorce Act: paras. 11–13.

[68] The Divisional Court concluded in Buhlmann v. Buhlmann-Miyake that while the trial judge made reference to the Family Law Act and the CLRA as “interpretive aids”, that the trial judge’s orders stemmed from the provisions of the Divorce Act: para. 14.

Discussion—The Issue of Whether a Court Has Jurisdiction to Make a Final Order for Corollary Relief Pursuant to the Divorce Act Prior to the Granting of a Divorce Under the Divorce Act

[69] It is not unusual in a divorce proceeding to make a final order for parenting, child support, or spousal support, and at the same time order that the granting of a divorce shall proceed on an undefended basis. This was the wording of the final order in the case at bar; it was also the situation in two of the Divisional Court cases discussed above. It was acknowledged in Mattina v. Mattina, supra, at para. 49, that the “… courts frequently make custody and access orders and direct that the divorce be dealt with later on an uncontested basis.”

[70] A final order dealing with issues of parenting, spousal support and child support must identify accurately the legislation pursuant to which the final order is made. The proper characterization of a final order, specifically as to whether it is made pursuant to provincial or federal legislation, is a matter of some significance extending beyond the parameters of a minor procedural point. The proper characterization of a final order can be a matter of jurisdiction. An order made without jurisdiction is a nullity.

[71] I conclude from the cases discussed, particularly the decisions of the Court of Appeal for Ontario in Rothgiesser, Okmyansky and Cheng, that a Canadian court has no jurisdiction to make a final order for corollary relief under the Divorce Act unless a divorce has been granted under the Divorce Act.

[72] The opposite conclusions reached in each of the Divisional Court cases in Mattina v. Mattina, Young v. Vanleer and Buhlmann v. Buhlmann-Miyake, that a final order for corollary relief can be made under the Divorce Act prior to the granting of a divorce, are irreconcilable with Rothgiesser, Okmyansky and Cheng, and also the decisions from appellate courts in Alberta, British Columbia, New Brunswick and Nova Scotia. In addition, the decision of the Supreme Court of Canada in Zacks v. Zacks, supra, although dealing with the predecessor Divorce Act, is consistent with the decisions of the provincial appellate courts.

[73] The three aforementioned Divisional Court cases, and also Bridgeman v. Balfour, supra, do not discuss or refer to Rothgiesser, Okmyansky and Cheng, or the previously-mentioned appellate court decisions from other provinces.

[74] This court is bound by the jurisprudence from the Court of Appeal for Ontario.

Interim Orders Under the Divorce Act Prior to the Granting of a Divorce

[75] I address briefly the issue of interim orders under the Divorce Act.

[76] In the context of parenting orders, the relevant section is s. 16.1(2) [reproduced earlier]. Regarding child spousal and spousal support, the relevant sections are, respectively, ss. 15.1(2) and 15.2(2).

[77] A divorce proceeding that includes claims for corollary relief necessarily involves spouses who are married and are not yet divorced: s. 2(1) definition of “divorce proceeding”.

[78] In relation, for example, to parenting orders, while a divorce proceeding is pending and the parties are not yet divorced, s. 16.1(2) authorizes an interim order to be made relating to parenting. Accordingly, in the limited circumstances of interim orders for parenting (and similarly for child support and spousal support), there is no requirement for the parties to be divorced while the divorce proceeding is pending. Statutory provisions for interim corollary relief orders are important because they allow parties to obtain interim corollary relief under the Divorce Act without having to wait for trial, particularly in situations where a claim for divorce is contested.

[79] In Chicoine v. Chicoine, 2007 BCSC 735, a decision of the British Columbia Supreme Court, the parties had commenced a divorce proceeding which was resolved by way of a consent order requiring the husband to pay spousal support. Later, the wife brought a variation application under s. 17 of the Divorce Act to vary a final order.

[80] However, during the hearing, the court learned that a divorce had never been granted. The court characterized this issue as one of some significance. The court stated that a final order for corollary relief under the Divorce Act cannot be made until a divorce has been granted, relying on cases including Kalsi v. Kalsi, supra, from the Alberta Court of Appeal: paras. 6, 40–48.

[81] In order to resolve the issue, the parties agreed to treat the order as an interim order under the Divorce Act pursuant to para. 15.2(2).

[82] The court concluded at para. 52 that if a divorce has not been granted, then any corollary relief orders made pursuant to the Divorce Act are not final orders.

Summary

[83] Given the foregoing discussion, I would suggest the following steps to ensure that an order for corollary relief under the Divorce Act is not a nullity:

a. Are the parties divorced pursuant to a foreign divorce that is recognized in Canada? If yes, then there is no jurisdiction to commence a proceeding for corollary relief under the Divorce Act;

b. If the parties are married, and a divorce proceeding is commenced with claims for corollary relief, the following options are available for a final order:

1. A divorce order can be made where the parties are divorced and at the same time final orders for corollary relief can be included in the divorce order;

2. A final order can be made pursuant to provincial legislation regarding parenting, spousal support or child support, with a provision in the order permitting the claim for divorce to be severed and to proceed on an uncontested basis. (In Ontario, this could be pursuant to r. 36 of the Family Law Rules.)

c. If a motion to change is brought regarding a final order made in circumstances described in para. b):

1. Where a divorce plus corollary relief is contained in a divorce order made in accordance with para. (b)(1), then the motion to change shall constitute a variation proceeding pursuant to s. 17 of the Divorce Act;

2. Where a final order has been made in accordance with para. (b)(2), then the motion to change proceeding will be a variation proceeding pursuant to the CLRA or Family Law Act, or both, depending on whether the variation relates to parenting or support [5];

d. Where a final order is made pursuant to provincial legislation, and the parties are divorced subsequently pursuant to the Divorce Act as mentioned in para. (b)(2), then rather than commencing a motion to change, the parties have the option to bring a corollary relief application under the Divorce Act. This proceeding will not be a variation proceeding, but rather the proceeding will be an application for an original order for corollary relief under the Divorce Act.

Disposition of the Parties’ Request for a Divorce

[84] I treat the applicant’s written submissions as joint submissions given the respondent’s position that he accepts the applicant’s submissions.

[85] The application that was filed at the time of the final order did not contain a claim for a divorce. Counsel explained that when they handed the consent endorsement request to the case conference judge, that counsel made an error advising the court that the final order should be under the Divorce Act. Both counsel mistakenly believed that a divorce claim had been included in the application. However, as is apparent from these reasons, if there had been a claim for divorce at the time of the final order, then that portion of the order purporting to be a final order for corollary relief under the Divorce Act would have been a nullity.

[86] On reviewing the documentary record and the written submissions, I am satisfied that the application subsequently was amended on consent to include a claim for divorce.

[87] The parties rely on r. 25(19) and request that the existing final order should be changed to correct the mistake in the order to the extent that the order indicates it was made pursuant to the Divorce Act. Rule 25(19) provides:

(19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[88] The present case is a not a situation where the final order is a nullity. The claims for support and parenting contained in the application at the time of the final order were made pursuant to provincial legislation. This is a proper circumstance to correct the mistake in the final order. While r. 25(19) refers to making an order “on motion”, I find that a motion is not necessary because the parties are in agreement on this matter. Rule 25(1) provides that if the parties agree, then the court may make an order under these rules or an Act, without having the parties or their lawyers come to court.

[89] I have reviewed the additional affidavit of the respondent sworn February 25, 2025, filed pursuant to my endorsement, clarifying the date of marriage. The order below provides that a divorce order shall issue.

[90] The order below also requires that various draft orders referred to should be submitted to me for approval.

Final Order

[91] I make the following final order:

1. A divorce is granted. A divorce order shall issue in the form and content of the draft divorce order, filed;

2. The clerk shall sign and issue an amended final order dated July 23, 2024, as follows:

   a. The amended final order shall be identical to the contents of the current issued final order, including the date of the order and the name of the judge, except for the changes described below;

   b. On page one, where the order is described as “Final”, the word “Amended” shall be added after “Final”;

   c. On page one, the box describing the order as being made pursuant to provincial legislation only, shall be filled in as follows: “x”;

   d. On page one, the words “PURSUANT TO THE DIVORCE ACT” shall be deleted and replaced by “PURSUANT TO THE CHILDREN'S LAW REFORM ACT AND THE FAMILY LAW ACT”;

   e. In para. 17, the words “divorce shall proceed on an uncontested basis” shall be removed and replaced by “Deleted”;

   f. The signature on the last page of the amended final order shall show the name of the clerk of the court who signs the amended final order, and the date of signature on the last page shall be the date that the amended final order is signed;

   g. Counsel shall provide a draft of the amended final order for my review together with a copy of the approved draft amended final order; and,

   h. The clerk shall sign and issue the amended final order dated July 23, 2024 after receiving my direction to do so.

3. Counsel shall prepare a draft of this order plus an approved draft copy, and counsel shall submit same for my review;

4. Any documents ordered to be provided for my review shall be forwarded by counsel to the Trial Coordinator.

5. Paragraph one of this order is made pursuant to the Divorce Act, and the balance of this order is made pursuant to the Children's Law Reform Act, the Family Law Act and the Family Law Rules.

“Justice Victor Mitrow”
Justice Victor Mitrow
Date: May 7, 2025

[1] The Court of Appeal for Ontario in Cheng found that there was jurisdiction to deal with child support and equalization payment under the Family Law Act.

[2] S.C. 2019 c. 16.

[3] The details of the entire final order are found in Vanleer v. Young, 2020 ONCA 459, at para. 8.

[4] Mattina v. Mattina, 2018 ONCA 641; Vanleer v. Young, 2020 ONCA 459.

[5] It is noted that where a final order is made for spousal support under the Family Law Act and the parties are divorced subsequently, there still is jurisdiction under the Family Law Act to vary the spousal support order: see Crosby v. Crosby, 2016 ONSC 4194, paras. 40–46.