As family law practitioners, we understand that jurisdictional issues can significantly impact case strategy and outcomes. The recent Court of Appeal decision in Janzen v. Cook, 2024 ONCA 654 provides important clarification on appeal routes in family law matters, particularly following the 2021 amendments to the Courts of Justice Act. This article examines the implications of this decision and offers practical guidance.
Case Facts
The parties, Ashley Janzen and David Cook, entered into a separation agreement dated June 30, 2011, which was filed with the Superior Court of Justice, Family Court pursuant to s. 35 of the Family Law Act. Janzen commenced a motion to change the child support provisions in the parties’ separation agreement, claiming Cook had underpaid support by “at least $100,000” (at para. 3).
Justice Ian Smith found no material change in Cook’s income and dismissed Janzen’s motion to change, granting only a one-time top-up payment of $1,168 for child support owed for 2020. The final order was made pursuant to the Family Law Act. Janzen brought an appeal from this order to the Court of Appeal, leading to the jurisdictional challenge.
The 2021 Amendments: A Refresher
In March 2021, amendments to the Courts of Justice Act came into force with the laudable goal of simplifying appeal routes in family law matters. However, as Janzen demonstrates, these “simplifications” have created their own interpretive challenges, particularly regarding which appellate court has jurisdiction in specific circumstances.
Issue to be Determined
The key issue before Justice Pepall of the Court of Appeal was straightforward: what is the appropriate jurisdiction for an appeal of a final order made only under the Family Law Act by a Family Court judge in Cayuga, dismissing a motion to change an order of the Family Court which incorporated the terms of a separation agreement?
Court Analysis
Justice Pepall began by noting the jurisdictional provisions under the Courts of Justice Act. Where a proceeding is brought before the wrong court, s. 110(1) provides that “it may be transferred to the right court.” Justice Pepall also highlighted that under s. 19(1)(a.1), “an appeal lies to the Divisional Court from, ‘a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario'” (at para. 9).
The court provided important context for understanding the Family Court’s place in Ontario’s judicial system:
“Under s. 21.1(1) of the Courts of Justice Act, the Family Court is a branch of the Superior Court of Justice. It is sometimes referred to as the Unified Family Court. It combines the jurisdiction of the Ontario Court of Justice and the Superior Court of Justice in relation to family law matters and hears all such matters where it exists.” (at para. 13)
Justice Pepall specifically addressed the 2021 amendments to the Courts of Justice Act, noting: “In 2020, the Courts of Justice Act was amended to simplify appeal routes in family law matters. The amendments came into force on March 1, 2021″ (at para. 11).
The Four-Factor Test from Janzen
Justice Pepall’s analysis distills the jurisdictional question into a straightforward four-factor test. An appeal lies to the Divisional Court when the order:
- Is a final order
- Was made by a judge of the Family Court
- Was made under provincial legislation
- Was made only under provincial legislation
The court concluded:
“As the order the appellant seeks to appeal is final, was made by a judge of the Family Court, was made under the provincial Family Law Act and, importantly, only under that Act, her appeal lies to the Divisional Court. Provided these four characteristics are met, her appeal is governed by s. 19(1)(a.1). The quantum of support disputed by the appellant and the respondent’s alleged failure to disclose are irrelevant to the issue of jurisdiction.” (at para. 16)
Common Misconceptions Clarified
The appellant in Janzen argued that because her claim exceeded $50,000, jurisdiction lay with the Court of Appeal under s. 19(1.2) of the Courts of Justice Act. Justice Pepall rejected this argument, emphasizing that the monetary threshold is irrelevant when the four characteristics are met.
Justice Pepall directly addressed the appellant’s reliance on previous case law:
“The case of Bahadori v. Samadzadeh relied upon by the appellant predates the amendments to the Courts of Justice Act and therefore has no application to the facts of this case. Had the order been made under the Divorce Act, RSC 1985, c. 3 (2nd Supp), by way of example, the appellant’s arguments would have had merit. However, once the four characteristics are met, the Divisional Court has jurisdiction, not the Court of Appeal.” (at para. 17)
This serves as an important reminder to verify that case law remains relevant post-amendment and highlights the distinction between orders made under federal versus provincial legislation.
Practical Implications for Your Practice
1. Carefully Examine the Order
When advising clients about appeals, examine the order carefully to identify:
- Whether it’s a final order
- The court that issued it (Family Court, Superior Court, or Ontario Court of Justice)
- The legislative basis for the order
2. Mixed Jurisdiction Cases
Justice Pepall noted that had the order been made under the federal Divorce Act in addition to provincial legislation, the appellant’s arguments about Court of Appeal jurisdiction would have had merit. This highlights the importance of identifying all legislative foundations for an order.
3. Regional Variations Matter
Remember that the Family Court (Unified Family Court) only sits in designated locations across Ontario—including Cayuga in this case. In non-designated areas, the Superior Court and Ontario Court of Justice have distinct and overlapping subject matter jurisdiction, potentially affecting appeal routes.
Looking Forward
The jurisdictional clarity provided by Janzen may help reduce procedural delays and costs for clients. However, the decision also underscores the continued complexity of our family justice system despite reform efforts.
Justice Pepall’s decision reminds us of the distinct nature of the three courts that preside over family law matters in Ontario:
“There are three kinds of courts that preside over family law matters in Ontario at first instance: the Family Court, the Superior Court and the Ontario Court of Justice… In other non-designated areas, the Superior Court of Justice and the Ontario Court of Justice both hear family law matters. Each has distinct and overlapping subject matter jurisdiction.” (at paras. 12-14)
This complex structure necessitates careful attention to jurisdictional issues.
As practitioners, we should:
- Stay vigilant about jurisdictional nuances when filing appeals
- Consider jurisdictional implications early in case strategy
- Advise clients about the potential time and cost implications of jurisdictional challenges
- Be mindful of the distinctions between orders made under provincial versus federal legislation
- Remember that pre-2021 case law on appeal routes may no longer be applicable
By understanding and applying the four-factor test from Janzen, we can navigate the jurisdictional maze more effectively, ultimately better serving our clients through this difficult time in their lives.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a Mediator and Abitrator who can make a difference in resolving your family disputes.
- Nearly Four Decades of Family Law Experience: With close to 40 years practicising solely on family law, Cheryl provides a wealth of practical experience to her clients.
- Masters Degree in Counselling: With a Masters Degree in Counselling, Cheryl approaches each case with a unique blend of empathy and insight.
- Certified Family Law Specialist : The Law Society of Ontario has recognized Cheryl’s expertise by certifying her as a Family Law Specialist.
- Accredited by the Ontario Association for Family Mediation: Cheryl’s mediation expertise have been acknowledged through her accreditation by the OAFM.
- Designated as an Arbitration Professional by the ADR Institute of Ontario: The ADR Institute has certified Cheryl’s arbitration expertise with a professional designation.
- Honored with Numerous Accolades for Excellence in Family Law: Cheryl’s exceptional contributions to family law have been recognized through numerous awards and honors, including the prestigious Ontario Bar Association’s Award for Excellence in Family Law.
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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.
