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Family - Appeals - Appeal Route. 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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