Jurisdiction of the Divisional Court in Family Law Matters

Pustai v. Pustai

The Judge of the Superior Court made a final Order terminating the husband’s obligation to pay spousal support, obliging the wife to pay child support, and requiring the husband to purchase a motor vehicle for his wife. The wife appealed to the Divisional Court and the husband subsequently applied to transfer the appeal to the Court of Appeal. In her Notice of Appeal, the wife set out sections 19(1)(a) and 19(1.2)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, as the basis for the Divisional Court’s jurisdiction.

It was determined that the Divisional Court did not have jurisdiction to hear this appeal and ordered that the appeal be transferred to the Court of Appeal.

The disputed provisions of the Courts of Justice Act were sections 19(1)(a) and (1.2):

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);

19 (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).

Section 19 sets out three exceptions to the general rule that a final Order of a judge of the Superior Court of Justice lies with the Court of Appeal. All of the exceptions under section 19(1)(a) relate to the payment of money, whether by ordering it to be paid or by dismissing a claim for its payment.

In prior jurisprudence, the Divisional Court has accepted jurisdiction over appeals for Orders regarding the termination of spousal support. However, Justice MacKinnon in this case preferred the view that a strict interpretation should be applied to section 19(1.2).

In McGrath v. Woodrow (2001), 52 O.R. (3d) 732 (Ont. C.A.), the judge explained:

“It is not the amount claimed in the action or counterclaim. It is not the amount “involved” in the appeal or “in issue” in the appeal. Jurisdiction under subclause 19(1) (a) (i) turns on the amount of the payment ordered by the judgment sought to be appealed.”

In other words, it is not the amount of money claimed under appeal that determines jurisdiction between the Ontario Divisional Court or the Court of Appeal for Ontario, but rather it is the amount of money ordered by the lower court that determines jurisdiction.

In the current case, the Order under appeal did not order payment of any amount of spousal support, rather, it provided that payments required under the existing consent order shall terminate on a fixed date. While the appellant had asked to change the spousal support order, this claim did not proceed and was not considered by the Superior Court judge.

For these reasons, the appeal was transferred to the Court of Appeal for Ontario.

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