Houle v. Trottier
In this judgment of the Ontario Superior Court of Justice (Divisional Court), Justices Pardu, Aston and Linhares De Sousa review the law surrounding corollary relief proceedings and the jurisdiction of the Superior Court to hear matters where there is an existing Order of the Ontario Court.
The parties married in 1998 and separated shortly thereafter in 1999. There was one child of the marriage, B, who was 14 at the time of the appeal. On June 8, 2008, the parties, Ms. Houle and Mr. Trottier entered into a Separation Agreement which included provisions awarding the mother custody and providing that the father pay child support of $400 per month.
In 2005, after paying child support pursuant to the parties’ Agreement for many years, Mr. Trottier brought an application in the Ontario Court of Justice seeking to reduce his child support obligation from $400 to $213 per month under the support provisions of the Family Law Act. In the intervening period, the parties had been divorced by an Order dated July 4, 2005 of the Superior Court of Justice, which had proceeded uncontested and with no claims for corollary relief.
On April 7, 2011, Ms. Houle commenced an application in the Superior Court of Justice seeking child support as corollary relied under section 15 and 15.1 of the Divorce Act. Ms. Houle further sought an Order that Mr. Trottier be obligated to maintain health coverage and life insurance as security for his support obligation, as stipulated in the parties’ Agreement. Ultimately, the Hearing Judge dismissed Ms. Houle’s application on the basis that the Superior Court did not have jurisdiction to hear the matter, as to allow the matter to proceed might prejudice Mr. Trottier’s right to proceed in the Ontario Court with an application or motion to vary the earlier child support order of the Ontario Court under the Family Law Act.
In Ontario, three courts deal with family law matters: the Family Court of the Superior Court of Justice; the Superior Court of Justice; and the Ontario Court of Justice.
In areas of Ontario that do not have a Family Court of the Superior Court of Justice, a specialized court with special services, the Superior Court is the court of superior jurisdiction. The Superior Court hears matters with issues relating to property, divorce, custody and access, and support. However, it does not deal with child protection matters or adoption proceedings. In contrast, the Ontario Court deals with issues of custody, access, support, child protection, and adoption, but does not have jurisdiction to hear divorce or property issues.
As such, a married spouse may bring an application for custody or support in either the Superior or Ontario Court, provided he/she is not bringing a property claim. However, a married spouse seeking a divorce must bring their application in the Superior Court.
Finally, both the Family Law Act and Divorce Act include provisions relating to child and spousal support. While married spouses are permitted to bring an application pursuant to either legislation, a common law spouse or unmarried parent is only permitted to bring an application under the former.
In the herein matter, the Court of Appeal debates the jurisdiction of the Superior Court, where an application for similar relief has already been commenced in the Ontario Court.
Court of Appeal’s Analysis
Justice Aston, writing for the 3-panel Court of Appeal, commenced his discussion of the issues by first examining Ms. Houle’s ability to seek corollary relief under the Divorce Act in Superior Court. He writes, “it is well settled that a former spouse may make an application for corollary relied under the Divorce Act subsequent to a divorce order that was silent on any issues of corollary relief.” As was the case in the case at bar, neither party had sought corollary relief when bringing the application for divorce in the Superior Court.
Ultimately, the Court of Appeal held that the Hearing Judge had erred in law in two respects; namely, she had a) “framed the issues as a case involving competing jurisdiction between a provincial court and a federal court; and b) had “failed to appreciate that an application for corollary relief under the Divorce Act is not an application to vary an order under the Family Law Act.”
While Ms. Houle could have brought at application to vary the Order of the Ontario Court reducing Mr. Trottier’s child support to $233 per month, she was not restricted to that option. Moreover, as Justice Aston points out, Ms. Houle had reasons for bringing a corollary relief proceeding under s. 15.1 of the Divorce Act, as the Ontario Court is incapable of adjudicating the issue of life insurance to secure support. In the end, the Court held that “the appellant should not be restricted from seeking relief under the remedial statute most amenable to her claim.”
As concluded by the Hearing Judge and confirmed by the Court of Appeal, the Superior Court does not have jurisdiction to vary an Order made in the Ontario Court of Justice under the Family Law Act. However, the Hearing Judge erred by relying on case law where the parties were not married and therefore did not have the option of proceeding under the Divorce Act; the jurisprudence reviewed by the Hearing Judge dealt with matters where parties were seeking to vary an Ontario Court order in the Superior Court.
Rather, the Court of Appeal correctly concluded 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 legislation.” Accordingly, the Superior Court had the jurisdiction to make a corollary relief order, which, if made, would have displaced the order of the Ontario Court.
As such, Ms. Houle’s appeal was allowed and her application for corollary relief was remitted to the Superior Court of Justice for a determination on its merits.