Dual Proceedings and the Jurisdiction of the Provincial Court to vary a Separation Agreement: Ostafichuk v. laboni

In this judgement of the Ontario Court of Justice, Justice Spence discusses the jurisdictional confusion that can sometimes result from a lack of a unified family court throughout Canada.  In this case, Justice Spence clarifies the authority of the provincial court to deal with variation of a separation agreement filed within the provincial court where subsequent proceedings are commenced in the Superior Court.  The father in this case brought a motion to determine whether the Ontario Court of Justice has jurisdiction to deal with issues of custody and support.

Factual Background

The parties in this matter were married in 1994, and separated on or about July 2007.  There were two children of the marriage: J.O., age 16, and R.O., age 14.  On September 1, 2007, the parties entered into a “homemade” separation agreement (hereinafter, “the agreement”) which purported to resolve all outstanding issues, including issues of custody and access, child and spousal support.

Shortly thereafter, on September 17, 2007, the father, Mr. Ostafichuk, filed the agreement with the Ontario Court of Justice (OCJ), pursuant to s. 35(1) of the Family Law Act (FLA).  This section permits the support provisions of domestic contracts, including separation agreements, to be enforced and varied as court orders under the FLA once being filed with the OCJ or SCJ.

Approximately one year later, on September 8, 2008, the mother, Ms. Iaboni, commenced divorce proceedings in the Superior Court of Justice (SCJ) and sought to set aside the agreement “save and except those items relating to custody and access.”

At the motion, one of the main issues in contention was interpretation of the following clause of the temporary order made on consent by the SCJ, dated June 1, 2009:

The corollary matters raised in the application of the [mother] and the claim by the [father] will continue as a corollary relief proceeding under the Divorce Act, and the [mother] will have carriage of the corollary relief proceeding.

While the SCJ granted the parties’ divorce on September 26, 2009, neither party continued with corollary relief proceedings at that time.  On October 31, 2011, however, the father commenced an application in the OCJ seeking to vary the agreement, both with respect to the custody and support provisions.  Despite being the party who commenced an application for relief in the OCJ, on motion, the father took the position that the OCJ did not have jurisdiction to address the outstanding issues as a result of the wording in the Consent Order dated June 1, 2009.  The mother, and the Office of the Children’s Lawyer (OCL), who was brought in to investigate and report to the court on the children’s views and preferences, took the position that the OCJ did not lack jurisdiction.

The Court’s Analysis

The Court began with a review of the relevant legislation; namely, s. 35(1) of the FLA which states,

A person who is a party to a domestic contract may file the contract with the clerk of the OCJ or of the Family Court of the SCJ together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement.

At the outset, Justice Spence noted that, but for the divorce proceedings, the OCJ would have authority to vary and enforce the agreement by virtue of s. 35(2) of the FLA.  The issue, therefore, was “whether [the OCJ’s] authority rests solely, or even concurrently, within the Superior Court of Justice.”

After reviewing relevant case law, including Abernethy v Peacock (2009, OCJ) and Gow v Gow (1989, Ont HC), Justice Spence concluded that because the separation agreement was initially filed with OCJ, “thereby conferring jurisdiction on that Court to vary or enforce the terms of that agreement, the OCJ [continued] to have jurisdiction, notwithstanding the subsequent granting of divorce in the SCJ.”

Despite conflicting case law, however, the father took the position that the Order of the SCJ created an “operational incompatibility;” he argued that any attempt to address “corollary issues” in the OCJ would conflict with the clause purporting to direct the corollary issues to proceed under the SCJ.

Justice Spence disagreed for three reasons.

First, because under s. 35(1), the OCJ has exclusive jurisdiction to vary an agreement that has been filed with the court, any order of the SCJ cannot be interpreted “in such a way as to clothe [the SCJ] with jurisdiction to vary the separation agreement.”  Second, examining the parties’ failure to proceed under the SCJ and subsequent actions in the OCJ, the parties “effectively demonstrated their intention to abandon any further proceedings in the SCJ.”  Finally, Justice Spence concluded that there was no “operational incompatibility” because the SJC did not make and substantive rulings on the corollary relief issues.  Rather, the SCJ orders dealt solely with procedural matters.  As a result, the OCJ had jurisdiction to rule substantively on issues of custody and support.

Thus, where proceedings regarding a separation agreement have been initiated in both the provincial and Superior courts, the provincial court has jurisdiction, provided that matters have not been substantively dealt with by the Superior Court. This is a case that highlights the need for a Unified Family Court across Canada as the jurisdictional argument in question would never have taken place if there was a Unified Family Court.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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