Court Of Appeal Summaries (February 6-10, 2017)

Below are the summaries for this week's civil decisions of the Court of Appeal for Ontario. There were several family law decisions. In Cheng v. Liu, the court dealt with whether it had jurisdiction to hear a corollary relief proceeding under the Divorce Act after a valid divorce in a foreign jurisdiction (no, but relief for child support can be sought under Ontario's FLA). In R.G. v. K.G, the court considered an application by a minor for a declaration that she had been removed from the care of her father. Gray v. Gray dealt with procedural issues in family law (whether a default trial judgment should be appealed or a motion brought to set it aside - the latter). In Meehan v. Good, the court made it clear that a lawyer's duty to his or her client may go beyond the four corners of the scope of the retainer, and may change over time as a matter progresses and new information comes to light. In U.S. Steel Canada Inc. (Re), the court denied leave to appeal from an order of a CCCA judge.

Civil Decisions

Cheng v Liu, 2017 ONCA 104

[Strathy C.J.O., MacPherson and Hourigan JJ.A.]

Counsel:

19. M. Fehrle, for the appellant

3. P. Goldson, for the respondent

   Keywords: Family Law, Divorce Act, Family Law Act, Jurisdiction, Divorce, Corollary Relief, Spousal Support, Child Support, Equalization of Net Family Property

   Facts:

   The trial judge ruled that the Superior Court had jurisdiction to adjudicate a claim for corollary relief under the Divorce Act, RSC 1985, c 3 (2d Supp), despite the fact that the parties' divorce had been validly granted by a foreign court. In so ruling, he distinguished this case from Okmyansky v Okmyansky, 2007 ONCA 427, where the Court of Appeal reached the opposite conclusion.

   The appellant is a Canadian citizen resident in Mississauga since 2005. He is an engineer, and his assets, property and sources of income are all in Canada. The respondent resides in China and has never been to Canada. The parties were married in China in August 2006. Their daughter, Chang, was born in February 2007 and resided with the respondent in China her entire life. The parties separated in December 2007 according to the appellant, and January 2008 according to the respondent.

   The respondent brought a divorce application in Ontario in March 2009. She sought a divorce, spousal support, child support and custody of Chang ("corollary relief") pursuant to the Divorce Act, and equalization of net family property pursuant to the FLA.

   On January 26, 2010 the appellant brought a divorce application in China, seeking a divorce, custody of Chang and equalization of property.

   Meanwhile in Canada, the respondent brought a motion in February 2010 before Quigley J who ordered the appellant to pay temporary monthly child support of $825.

   In April 2010 the appellant brought a motion to stay the matrimonial proceeding in Ontario so that it could be heard in China. The respondent sought to have the application heard in Ontario. Justice Baltman concluded that the Ontario court had jurisdiction to hear the application as the husband had been resident in Ontario for the year immediately preceding the commencement of the proceeding. However, she noted that the issues of custody and access would have to be determined in China. Justice Baltman concluded that China was the more appropriate forum for the matrimonial proceeding, and that the application in Ontario should be stayed.

   The Chinese family court granted the divorce and awarded custody of Chang to the respondent, as well as sole ownership of the real property she had purchased in China prior to the marriage.

   The Chinese court declined to exercise its jurisdiction to determine support and equalization. After unsuccessfully appealing this decision, the respondent brought a motion in Ontario Superior Court to lift the stay of the Ontario application, arguing that the stay should be lifted because the appellant had breached the orders of the Chinese court to make full financial disclosure and thereby breached terms of a previous order of the Ontario court.

   After a trial management conference, the first issue to be determined was jurisdiction. Depending on the outcome, a trial on the merits would be held.

   The trial judge held that the Superior Court of Justice had jurisdiction to determine the issues of child support, spousal support and equalization of net family property.

   Issues:

   Does an Ontario court have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce order made in a foreign jurisdiction? Does an Ontario court have jurisdiction under the FLA to determine the issue of child support after a foreign court has issued a divorce? Holdings:

   Appeal dismissed.

   Reasoning:

   No. The Court referred to its previous decision in Okmyansky, where it was held that nothing in the legislative history of the Divorce Act indicates that Parliament intended the 1993 amendment to confer jurisdiction on Canadian courts to hear and determine corollary relief proceedings following a valid divorce in a foreign jurisdiction. The case is clear and unequivocal authority that an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce. The trial judge erred in law when he attempted to distinguish this case from Okmyansky. Yes. Where a court issuing a divorce has not adjudicated the issue of child support, provincial legislation is a valid means of seeking a child support remedy. The principles developed in the case law are analogous to a situation where a foreign court grants a valid divorce, but does not deal with child support. In the present case, while there is a valid divorce in place issued by the Chinese court, that court has expressly ruled that the issue of child support is better determined by the Ontario courts. There is no statutory prohibition against using the FLA in such circumstances. Indeed, the use of the FLA to provide a remedy is consistent with the statuary objective of ensuring that parents provide support for their dependent children. Ontario courts have the authority to award child support under s 33 of the FLA. There is nothing in the legislation that restricts that authority in situations where a divorce order has been granted outside of Canada. The use of the FLA in circumstances where relief under the Divorce Act is unavailable does not engage the paramountcy doctrine, as there is no operational incompatibility between the federal and provincial statutes. To the contrary, the two statutes are operating harmoniously to ensure that a remedy for child support is available. R.G. v. K.G., 2017 ONCA 108

   [Gillese, Benotto and Roberts JJ.A.]

   Counsel:

7. Joseph and R. Kniznik, for the appellant

3. Doris, for the respondent, K.G.

   J.Mark and E. Chan, for the respondent, O.G.

   Keywords: Family Law, Custody, Children's Law Reform Act, R.S.O. 1990, c. C.12, Family Law Rules, O. Reg. 114/99, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759

   Facts: This appeal concerns an application by a minor ("O.G.") for a declaration that she has withdrawn from parental control. The father (the "appellant") of a now 17-year-old girl appeals a declaration that she has withdrawn from parental control. If his appeal is successful, he also appeals an order which held that, in light of the declaration, the issue of her custody is moot. The parties are diametrically opposed with respect to the application process and the factors for the court to consider...