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Family - Appeals - Appeal Route. J.M. v. B.S.
In J.M. v. B.S. (Ont CA, 2024) the Ontario Court of Appeal considers an appeal route issue, here where it found that the order was under the Divorce Act:[6] The mother argues that this court has jurisdiction to hear the appeal because the Vaccination Order was made under the Divorce Act and because its effect is final. She submits that vaccinating a child is an irreversible act.
[7] Based on the Form 8 Application, I accept that this aspect of the order was made under the federal Divorce Act. As such, it would not be caught by s. 19(1)(a.1) of the CJA, which gives the Divisional Court jurisdiction to hear appeals from final orders of the Family Court that were made only under provincial legislation. An appeal from a final order under the federal Divorce Act lies to this court: Mattina v. Mattina, 2018 ONSC 1569, 11 R.F.L. (8th) 69, at para. 33. However, this does not end the inquiry. Contrary to the mother’s submission, this court does not have jurisdiction over all appeals arising from the Divorce Act. This court only has jurisdiction if the order appealed from is also final and therefore not captured by s. 19(1)(b) of the CJA: Goldberg v. Goldberg (1989), 1989 CanLII 4211 (ON SC), 68 O.R. (2d) 124 (H.C.); see also Elgner v. Elgner, 2011 ONCA 483, 105 O.R. (3d) 721, leave to appeal refused, [2011] S.C.C.A. No. 341. In my view, the decision in this case was interlocutory and this court therefore does not have jurisdiction. . Buhlmann v. Buhlmann-Miyake
In Buhlmann v. Buhlmann-Miyake (Div Court, 2024) the Divisional Court considered the family court appeal routes under CJA s.19(1), which distinguish appeal routes between federal Divorce Act issues versus Ontario family law issues:[4] On August 12, 2024, counsel for the Respondent in the Appeal advised the Court that the Respondent in Appeal took the position that the Divisional Court did not have jurisdiction over the appeal since the final orders of MacPherson J. were made in relation to parenting time, child support and divorce under the Divorce Act, and therefore does not fall within the jurisdiction of the Divisional Court under s. 19(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[5] The relevant parts of s. 19(1) of the Courts of Justice Act provide:19 (1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario;
(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (a) applies in respect of a final order,
(a) for a single payment of not more than $50,000, exclusive of costs;
(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order;
(c) dismissing a claim for an amount that is not more than the amount set out in clause (a) or (b); or
(d) dismissing a claim for an amount that is more than the amount set out in clause (a) or (b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (a) or (b). [6] In light of this objection, on August 20, 2024, I invited the parties to file submissions to address the jurisdictional issues raised by the Respondent in Appeal, and directed them to consider this Courts decisions in C.C. v. J.B., 2021 ONSC 2174, at paras. 8 -10; Mattina v. Mattina, 2018 ONSC 1569; and, Young v. Vanleer, 2020 ONSC 3606.
[7] The parties’ respective positions were received.
[8] Since the trial judge severed the divorce from the corollary relief, the Appellant argues that no federal legislation or regulations were involved in the Order granted and under appeal.
[9] The Respondent in Appeal takes the position that the final order was made under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). The proceedings were brought in the context of divorce proceedings, and while divorce was severed from the corollary relief, the corollary relief dealt with by the judge included all of the other issues raised in the divorce proceedings: mobility, parenting and support. Since the parents were married, these orders were all made under the Divorce Act.
[10] A review of the decision of the trial judge supports the position of the Respondent in Appeal.
[11] In resolving the parties dispute in relation to “Decision-Making, Parenting Time and Mobility”, MacPherson J. expressly references s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) when considering the best interests of the child at paras. 182 and 183 of his decision. Similarly, he relied on the definition of a “child of the marriage” in s. 2 of the Divorce Act at para. 229 of his decision.
[12] With regard to the issue of the Appellant’s intention to move the children to Switzerland, MacPherson J.’s decision, at paras. 243-244, relies on s. 16.9 of the Divorce Act. MacPherson J. declined to authorize a relocation of the children, and this is one of the Appellant’s grounds of appeal.
[13] Financial issues such as spousal support and child support were also dealt with pursuant to the applicable sections of the Divorce Act: see paras. 260 and 272-276.
[14] While MacPherson J. does make reference to the Family Law Act and the Children’s Law Reform Act as interpretive aids, it is clear from his decision that his orders stemmed from the provisions of the Divorce Act.
[15] Moreover, as the Respondent in Appeal notes, once divorce proceedings are commenced, the provisions of the Divorce Act govern. Any claims relating to decision making, parenting time, mobility and support are dealt with under the Divorce Act and can be addressed even if the divorce is severed from the corollary relief and dealt with at a later date. See Bridgeman v. Balfour, 2012 ONSC 6583, at paras. 9-10:The Parliament of Canada has been granted the power to deal with divorce pursuant to section 91(26) of the Constitution Act, 1867. This power allows Parliament to legislate respecting the issues of custody and access when these matters are raised in the context of divorce. The final order of Lafrenière, J. dated February 16, 2006 as it related to the custody and access issues was not made pursuant to the CLRA, but rather pursuant to section 16 of the Divorce Act, in the context of a divorce proceeding in which the Applicant also requested corollary relief. This is apparent from paragraph 9 of the order, which refers to the divorce being dealt with at a later date on an uncontested basis.
Although the February 16, 2009 order of Lafrenière, J. was made prior to the divorce being granted, this does not alter the fact that the order was made pursuant to the Divorce Act. 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. [16] See also: Mattina v. Mattina, 2018 ONSC 1569, at paras. 37-38:When a divorce is claimed, as in this case, the federal statute prevails. The Divorce Act governs and claims for custody and access under the Children's Law Reform Act are stayed as set out in s. 27 of the Children's Law Reform Act:27 Where an action for divorce is commenced under the Divorce Act (Canada), any application under this Part in respect of custody of or access to a child that has not been determined is stayed except by leave of the court. In Bridgeman v Balfour 2012 ONSC 6583 at paras. 8-11, the court correctly concluded that when parties seek claims under the Children's Law Reform Act and the Divorce Act, the custody and access claims are governed by the federal act. Claims for custody and access are stayed pursuant to s. 27. [17] In this case, it is clear that the order was made under the Divorce Act and as a result the appeal must be heard by the Court of Appeal pursuant to s. 6 (1)(b) of the Courts of Justice Act: Mattina, at paras. 37-38; C.C. v. J.B., 2021 ONSC 2174, at paras. 8-10; Young v. Vanleer, 2020 ONSC 3606, at para. 4. See also: Janzen v. Cook, 2024 ONCA 654
[18] The Respondent in Appeal advises that the Appellant has also filed this appeal in the Court of Appeal and obtained a Court of Appeal file number: COA-24-CV-0854. Accordingly, it is not necessary to consider transferring this appeal to the Court of Appeal as authorized by s. 110(1) of the Courts of Justice Act.
[19] Accordingly, the appeal to the Divisional Court is quashed.
[20] The Appellant’s motion to stay the Order of MacPherson J. must be made to the Court of Appeal pursuant to Rule 63.02(1)(b). . Janzen v. Cook
In Janzen v. Cook (Ont CA, 2024) the Ontario Court of Appeal grants an appeal court transfer (CA to Divisional), and usefully explains family law trial and appeal routes:[1] This decision addresses the issue of the appropriate jurisdiction for an appeal of a final order made only under the Family Law Act, R.S.O. 1990, c.F. 3 by a Family Court judge in Cayuga, dismissing a motion to change a separation agreement.
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Positions of Parties
[7] Before me, the respondent brings a motion for an order transferring the appeal to the Divisional Court in Hamilton on the basis that the Divisional Court has jurisdiction and this court does not. He relies on ss. 110(1) and 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.
[8] Under s. 110(1) of the Courts of Justice Act, where a proceeding or step in a proceeding is brought before the wrong court, it may be transferred to the right court. Therefore, if the respondent is correct, the appeal may be transferred to the Divisional Court in Hamilton.
[9] Under s. 19(1)(a.1) of the Courts of Justice Act, an appeal lies to the Divisional Court from, “a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.
[10] The appellant responds by submitting that the Court of Appeal has jurisdiction by virtue of s. 19(1.2) of the Courts of Justice Act, which addresses the monetary jurisdiction of the Divisional Court. She asserts that as her claim is for more than $50,000, jurisdiction lies with the Court of Appeal. She also relies on the case of Bahadori v. Samadzadeh, 2009 ONCA 10.
Analysis
[11] In 2020, the Courts of Justice Act was amended to simplify appeal routes in family law matters. The amendments came into force on March 1, 2021.
[12] There are three kinds of courts that preside over family law matters in Ontario at first instance: the Family Court, the Superior Court and the Ontario Court of Justice.
[13] Under s. 21.1(1) of the Courts of Justice Act, the Family Court is a branch of the Superior Court of Justice. It is sometimes referred to as the Unified Family Court. It combines the jurisdiction of the Ontario Court of Justice and the Superior Court of Justice in relation to family law matters and hears all such matters where it exists: Christodoulou v. Christodoulou, 2010 ONCA 93, 258 O.A.C. 193, at para. 33. The Family Court sits in various designated locations across Ontario. One such location is Cayuga, Ontario. Described as the Superior Court of Justice, Family Court, it is clear that the order in issue in this motion was a Family Court order.
[14] In other non-designated areas, the Superior Court of Justice and the Ontario Court of Justice both hear family law matters. Each has distinct and overlapping subject matter jurisdiction.
[15] A final order of the Family Court lies to the Divisional Court if it was made only under provincial legislation. As mentioned, s. 19 (1) of the Courts of Justice Act states that “[a]n appeal lies to the Divisional Court from…(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.
[16] As the order the appellant seeks to appeal is final, was made by a judge of the Family Court, was made under the provincial Family Law Act and, importantly, only under that Act, her appeal lies to the Divisional Court. Provided these four characteristics are met, her appeal is governed by s. 19(1)(a.1). The quantum of support disputed by the appellant and the respondent’s alleged failure to disclose are irrelevant to the issue of jurisdiction.
[17] The case of Bahadori v. Samadzadeh relied upon by the appellant predates the amendments to the Courts of Justice Act and therefore has no application to the facts of this case. Had the order been made under the Divorce Act, RSC 1985, c. 3 (2nd Supp), by way of example, the appellant’s arguments would have had merit. However, once the four characteristics are met, the Divisional Court has jurisdiction, not the Court of Appeal. . Collins v. Tiveron
In Collins v. Tiveron (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion on family law appeal route grounds, here while treating this appeal route issue as the RJR 'merits' element during a motion to extend time to commence an appeal:[14] .... Whatever the merits of underlying legal arguments may be, this appeal from a final family law order made in the Ontario Court of Justice would ordinarily be brought not to this court, but to the Divisional Court, pursuant to s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C-43 and s. 73(1)(a) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. Mr. Collins seeks to overcome this problem by asking that this appeal be joined with his appeal of the Interim Child Support Appeal Decision, COA-24-CV-0418, pursuant to s. 6(2) of the Courts of Justice Act.
[15] The primary problem with this joinder request is that there are jurisdictional problems with bringing an appeal of the Interim Child Support Appeal Decision to this court as well. In my view, the appeal of that decision is an attempt by Mr. Collins to appeal “an interlocutory order of a judge of the Superior Court of Justice made on an appeal from an interlocutory order of the Ontario Court of Justice”, which is prohibited by s. 19(4) of the Courts of Justice Act. Simply put, Mr. Collins is attempting to overcome the jurisdictional challenges in his appeal of the Final Parenting Decision, by bootstrapping it with his appeal of the Interim Child Support Appeal Decision, which has jurisdictional problems of its own.
[16] There is therefore no procedural avenue that should result in this appeal being heard in this court, and an appeal is meritless where the appeal court has no jurisdiction to hear it: see Sabatino v. Posta Ital Bar Inc., 2022 ONCA 208, at paras. 22-24. Although a single judge cannot determine jurisdiction on a final basis and quash an appeal, a single judge can consider the court’s lack of jurisdiction when refusing an extension: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 8, citing Courts of Justice Act, s. 7(3); Jadhav v. Jadhav, 2020 ONCA 19; Henderson v. Henderson, 2014 ONCA 571, 324 O.A.C. 138, at para. 8. In my view, the fact that the appeal of the Final Parenting Decision should not be in this court undercuts its merits and the interests of justice in granting the extension being sought. . Walsh v. Tober
In Walsh v. Tober (Div Court, 2023) the Divisional Court considers the sometimes complex 'route of appeal' in family law matters:[25] An appeal lies as of right to the Divisional Court from a final order of a judge of the Family Court (a branch of the Superior Court of Justice) made only under a provision of an Ontario Act or regulation: CJA, ss. 19(1)(a.1), 21.1. Since the orders under appeal were final orders made in Welland (a Family Court jurisdiction), the orders were made by a judge of the Family Court: CJA, ss. 21.2. As well, the orders were made only under Ontario statutes, being the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) and the Family Law Act, R.S.O. 1990, c. F.3: see CJA, s.21.8. Therefore, the Divisional Court has jurisdiction to hear this appeal. . Soleimani v. Karimi
In Soleimani v. Karimi (Div Court, 2023) the Divisional Court considered a fussy family law CJA appeal route issue:[1] This is an appeal from two orders of Healey, J. dated January 7, 2022 and January 11, 2022. The January 7 order directed the release of half the proceeds from the sale of a matrimonial property to one of the owners on title, the Respondent on Appeal Azadeh Soleimani. The January 11 order dismissed the claim by the Appellant/third party Puya Karimi for an equitable interest in the sale proceeds.
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THE JURISDICTIONAL ISSUE
[22] The parties submit that there is a live question as to our jurisdiction to hear this appeal pursuant to the Courts of Justice Act, R.S.O. 1990, c C.43. The relevant provision is found s. 19(1) of the CJA:Divisional Court jurisdiction
19(1) An appeal lies to the Divisional Court from,
(a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);
(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario; [23] Section 19(1)(a) does not provide the Divisional Court with jurisdiction, since the orders under appeal are not as described in ss. 19(1.1) or (1.2). Those provisions address appeals from orders under certain monetary limits ($25,000 or $50,000 depending on when the order was made), which have no application in this case.
[24] Turning now to s. 19(1)(a.1), there is no dispute that the orders under appeal were made by a judge of the Family Court, since Newmarket is a Family Court jurisdiction: see CJA, ss. 21.1(4), 21.1(5), 21.8(1). As well, by Charney J.’s endorsement dated March 17, 2022, the orders under appeal were previously determined to be “final orders” for the purpose of determining appellate jurisdiction: see Soleimani v. Karimi, 2022 ONSC 1685 (Div. Ct.). Therefore, the issue to be determined is whether the orders were “made only under a provision of an Act or regulation of Ontario.”
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Analysis
[29] The approach to statutory interpretation begins with the direction from the Supreme Court of Canada in Rizzo Shoe, that is, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the objects of the Act, and the intention of Parliament”: Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
[30] Section 19(1)(a.1) gives this court jurisdiction over final orders from judges sitting in the Family Court, in certain circumstances, that is, orders “made only under a provision of an Act or regulation of Ontario.” Section 21.1 (1) of the CJA describes the Family Court as “a branch of the Superior Court of Justice known as the Family Court in English and Cour de la famille in French.”
[31] Section 21.8 (1) provides:In the parts of Ontario where the Family Court has jurisdiction, proceedings referred to in the Schedule to this section, except appeals and prosecutions, shall be commenced, heard and determined in the Family Court. [32] The Schedule referred to in that section provides the Family Court with jurisdiction over matters as follows:1. Proceedings under the following statutory provisions:
Change of Name Act
Child, Youth and Family Services Act, 2017, Parts V, VII and VIII
Children’s Law Reform Act, except sections 59 and 60
Civil Marriage Act (Canada)
Divorce Act (Canada)
Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada)
Family Law Act, except Part V
Family Responsibility and Support Arrears Enforcement Act, 1996
Interjurisdictional Support Orders Act, 2002
Marriage Act, section 6.
2. Proceedings for the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement, paternity agreement, family arbitration agreement or family arbitration award.
3. Proceedings for relief by way of constructive or resulting trust or a monetary award as compensation for unjust enrichment between persons who have cohabited.
4. Proceedings for annulment of a marriage or for a declaration of validity or invalidity of a marriage.
5. Appeals of family arbitration awards under the Arbitration Act, 1991.
6. Proceedings under First Nation laws made under,
i. the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada), or
ii. the First Nations Land Management Act (Canada), with respect to the effect of relationship breakdown on matrimonial real property.
7. Any other family law proceedings that may be prescribed by the regulations. [33] The recognition that judges of the Family Court have jurisdiction over a broad range of statutory proceedings, both federal and provincial, provides some context for the appeal route to the Divisional Court found in s. 19(1)(a.1). The thrust of those provisions leads us to conclude that the Legislature intended to exclude final orders of the judges of the Family Court under federal legislation from the jurisdiction of the Divisional Court on appeal, leaving appeals from final orders made under provincial legislation (including orders addressing claims for equitable relief referred to in the CJA) within the Divisional Court’s jurisdiction: see C.C. v. J.B., 2021 ONSC 2174 (Div. Ct.). The excluded matters would be heard by the Court of Appeal for Ontario by virtue of s. 6 (1)(b) (i) of the CJA, which provides as follows:Court of Appeal jurisdiction
6(1) An appeal lies to the Court of Appeal from,
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(b) a final order of a judge of the Superior Court of Justice, except,
(i) an order referred to in clause 19 (1) (a) or (a.1), [34] In our view, interpreting s. 19(1)(a) to include the orders under appeal in this case is consistent with access to justice principles, the importance of which is highlighted in previous case law, including Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[35] In the matter under appeal, Healey J. heard a motion dealing with (i) property rights claimed by Azadeh pursuant to provincial legislation, including the Family Court Rules made as a regulation under the Family Law Act, and (ii) equitable relief claimed by Puya pursuant to equitable principles referred to in the CJA. Healey J. also applied the provincial Statute of Frauds. There was no federal legislation in play at the motion that is the subject of the appeal before us.
[36] When considering whether the orders under appeal were made only under a provision of an Act or regulation of Ontario, it is important to consider the context of Healey J.’s finding that there was no genuine issue requiring a trial, leading to her order for partial summary judgement. That finding was made in the context of a motion to pay half the proceeds from the matrimonial home sale to Azadeh. Section 23 of the Family Law Act provides the court with broad authority relating to the matrimonial home, including the power to order the home’s sale or encumbrance, and to determine whether or not a property is a matrimonial home.
[37] As part of the reasoning process in deciding to grant the motion to pay half the sale proceeds to Azadeh, the motion judge found that there was no genuine issue requiring a trial on the ownership issue. Flowing from that finding, Healey J decided to grant summary judgment and dismiss Puja’s ownership claim, as provided for in r. 16 of the Family Law Rules. That chain of reasoning supports the conclusion that the orders under appeal were made only under provisions of an Act or a regulation of Ontario.
[38] We conclude that the orders under appeal were made under provisions available to the motion judge under provincial legislation to determine whether to release the funds from the sale of the Beaufort Property to Azadeh and to determine Puja’s trust claim.
[39] Accordingly, we find that the Divisional Court has jurisdiction over this appeal under s. 19(1)(a.1) of the CJA.
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