No Jumping from Court to Court in Family Litigation
“Pick a family court, and stick with it.”
That seems to be the advice from the Ontario Superior Court of Justice in a recent decision concerning the ability of family law litigants to have an Order made in one kind of family court, be varied in another.
To understand the decision, it’s important to understand how Family Courts are structured and organized in Ontario. This was succinctly summarized by the Court of Appeal in another case, decided in 2009, called Christodoulou v. Christodoulou:
There are three kinds of courts that hear family law matters in Ontario. The Family Court exists in some areas and combines the jurisdiction of the Ontario Court of Justice and Superior Court of Justice in relation to family law. That is, the Family Court hears all family matters where it exists. In other areas, the Ontario Court of Justice and the Superior Court of Justice each hear certain family matters. Only the Superior Court of Justice has jurisdiction to hear divorce applications and matters relating to property division. Only the Ontario Court of Justice has jurisdiction to hear child protection and adoption matters at first instance.
Turning back to the more recent decision: the case involved a husband and wife who had married in 1998 but separated 2.5 years later. They had one child, now 12 years old, who lives primarily with the mother. A separation agreement between the spouses obliged the husband to pay $100 per week in child support.
To finalize the matters between them, the wife then brought her claim to the Ontario Court of Justice to seek custody, child support, and certain related Orders. Those Orders were granted, and subsequent variations (for example, to allow the husband to have “reasonable computer and telephone” access to the child) were heard in that court as well.
However, in 2005, the wife took the next step and applied to the Ontario Superior Court of Justice for a divorce. This was granted to the parties on an uncontested basis. In the process of doing so – and this is an important point – she did not seek any Order for custody or child support.
If the wife had requested custody or child support, the Ontario Superior Court of Justice, which has jurisdiction over those matters if they are part of a divorce application, might have exercised that jurisdiction and granted the wife custody or child support pursuant to the provisions of the Divorce Act.
However, this is not how the wife chose to proceed. Her divorce petition did not request any corollary relief such as custody or child support, because she had already obtained an Order covering those matters from the Ontario Court of Justice. Nor did the wife object to having matters heard in that Court, even when she had an opportunity to do so as part of a variation application that was heard in 2006.
The divorce resulting Order reflected this, in that it was silent on these matters.
The wife then came back to the Ontario Superior Court of Justice, to obtain an “interim and permanent” Order for custody and child support, among other things.
The judge held that she was bringing her matter to the wrong Court. The jurisdiction in which the parties lived did not have a dedicated Family Court, so they had an option to start their litigation in either the Ontario Court of Justice, or the Superior Court of Justice. Having chosen the former, they were bound to keep their matter there; it was not now open for them to ask the Superior Court to step in for the purpose of varying the original Order. Based on a review of the statutes and cases, that Court did not have the jurisdiction to vary a final Order that had been made in the Ontario Court of Justice.
Simply put: a family law litigant of whatever type (i.e. whether married or unmarried) who wants to vary an Order can only go back to the Court that made it (or in some areas, go to the Supreme Court of Justice – Family Court, which is both courts in one). This effectively prohibits litigants from shopping around their family matters to various courts, re-commencing or re-litigating multiple actions in different courts, and trying to indirectly what cannot be done directly.
The Court dismissed the motion for summary judgment.
For the full text of the cases, see:
Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII) http://canlii.ca/t/27swf
Houle v. Trottier, 2012 ONSC 786 (CanLII) http://canlii.ca/t/fpwwl
