Despite the Federal Government's best efforts, C-78 does not address an uncommon but vexing jurisdictional issue for changes to spousal support after a divorce

Background

The Federal Government’s C-78 (“An Act to Amend the Divorce Act…”) has proceeded through all three readings in the House of Commons and two readings in the Senate. These changes are said to be part of a mandate to expand the Unified Family Court, which is an initiative that should clearly be encouraged. While the Act does make positive changes to family law terminology, without amendments to provincial family law legislation, the changes will have less reach than desired.

 Within the Unified Family Court, most of the cases, even where a Divorce is sought, spend most of their time being adjudicated under provincial legislation. Consequential amendments to the provincial scheme are sorely needed and action is required by Ontario to reduce the gap between the two legislative schemes. However, there remains one simple amendment to be made by the Federal Government, which would solve an arcane procedural issue created by these differences.

Changes to Language 

The Bill proposes many long-awaited changes to the language of parenting in family law, chiefly that “custody” is now referred to as “decision making responsibility” and “access” is now referred to as “parenting time.” 

Anecdotally, these changes have been well received by the family bar and are long-overdue: the old terminology was not well understood by clients, were emotionally laiden and, consequentially, tended to cause issues between the parties rather than serve as a descriptive label.

When the Bill C-78 comes into force, those terminology changes will be the formal terms for cases under the Divorce Act. Due to the positive reception from the bar, the terms will likely see an expanded use in court, but formally, the family court exercises jurisdiction under the Divorce Act only corollary to issuing a Divorce Order.

In simple terms, this means that until the Divorce Order is issued, interim orders are made under provincial legislation: s. 72 of the Children’s Law Reform Act for custody and access and s. 34 of the Family Law Act with respect to support.  In a Unified Family Court, the court does not exercise jurisdiction under the Divorce Act until it issues the divorce, which is typically at the conclusion of the file.

Therefore, for the majority of cases, the formal language of “custody” and “access” will still be the legislative language since the are currently no Bills before Ontario’s Legislature with respect to making consequential amendments to provincial family law legislation. 

The problem

The topic of this blog post is to address a jurisdictional gap which is poorly understood, even by family lawyers and involves the different treatment the law affords to married and unmarried former spouses when it comes to changing the terms of spousal support in a Separation Agreement after a divorce is issued.

In 2017, I presented at the 26th Annual Institute of Family Law where I discussed the 2016 decision of Stobo v. Stobo. This decision by Justice Doyle is an excellent review regarding the jurisdictional limits of the Unified Family Court when exercising powers under the Divorce Act and Family Law Act. Justice Doyle’s jurisdictional review highlighted this issue. You can read my paper here.

Currently, when unmarried former spouses wish to change a spousal support provision in an agreement, they have access to a simple procedure: they file the agreement they want to change (pursuant to s. 37 of the Family Law Act) and ask the court to vary the agreement. This is done by way of a Rule 15 Motion to Change and is subject to the “Fast Track” procedure under the Family Law Rules and a First Appearance will be automatically created by the court clerk. There are no court fees associated with bringing a Motion in this scenario.

For divorced parties who negotiated their spousal support arrangements outside of the court order, the procedure is much more complex and much more challenging, particularly for self-represented parties. If a simple divorce is issued without corollary relief and spousal support was amended by agreement post-divorce, the parties cannot use the simple procedure available to non-divorced former spouses. 

In this case, the divorced parties cannot file a motion to change and must attend court to file an application for corollary relief under the Divorce Act. The case will be on the “standard track” and a conference date must be manually scheduled by a party. Even though the parties would have paid court fees when they initially receive their divorce, they will likely be subject to the new $632.00 in filing fees for an application in the Superior Court

The problem is that there is no mechanism in the Family Law Act to vary, by Motion to Change, an agreement between divorced parties who used to be former spouses under the Family Law Act and opted for a simple divorce. Once the divorce order is issued, unless there is a final order for spousal support under the Family Law Act which was not adjudicated on by the corollary relief, the ability to bring a Rule 15 Motion to Change support is lost. 

The potential solutions

The court’s conclusion in Stobo v. Stobo is inescapably correct when one applies a textual interpretation. Without being able to file the agreement as if it was an order, pursuant to s. 35 of the Family Law Act, the only document capable of being varied is a court order under s. 37 of the Family Law Act.  Without a Charter application before her on the equality aspects of this distinction, there was no jurisprudence on which Justice Doyle could find that an “agreement” and “order” are the same for the purpose of a variation.

At the same time, the legislature’s language creates what I believe to be an unfair differential treatment. Through no fault of their own, former spouses who are divorced and find themselves in this position are subject to more procedure and expense than non-divorced former spouses. The reasons for the difference are unrelated to the court’s mandate in the Divorce Act since in this circumstance, the court has already exercised its jurisdiction to determine whether proper child support and parenting arrangements were put in place.

There are a couple legislative solutions to this problem, all of which are fairly simple:

1.   The Federal Government may amend s. 17 of the Divorce Act

Since Bill C-78 is still progressing through both houses, the Federal Government is in convenient position to amend the variation provision of the Divorce Act with respect to spousal support. With one amendment, permitting the variation of domestic contracts, divorced parties could access the simple procedure in Rule 15 and bring a Motion to Change (as is dictated by Rule 8(2)), and the variation would occur pursuant to s. 17(1) of the Divorce Act, rather than s. 37 of the Family Law Act.  

This amendment to the Divorce Act may be made as follows (shown in bold):

 Variation order

 17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, or a support provision in a domestic contract, on application by either or both former spouses; […]

Curiously, since “domestic contract” is not defined in the Divorce Act, a definition would also be a required addition in the interpretive sections of the Act.

 

2.   The Provincial Government may amend section 37(2) of the Family Law Act

The most straightforward and simple amendment would be for the Government of Ontario to amend s. 37(2) by allowing former spouses to use the procedure under s. 37 of the Family Law Act. This amendment would permit divorced former spouses to use the fast track procedure to request a variation of support agreements as if they were court orders.

Application for variation

37 (2) In the case of an order for support of a spouse, former spouse, or parent, if the court is satisfied that there has been a material change in the dependent’s or respondent’s circumstances or that evidence not available on the previous hearing has become available, the court may […]

Unlike the proposed changes to the Divorce Act’s language, no consequential amendments to definitions would be required.

 

Conclusion

The amendments I am proposing are simple and, particularly, the amendment to the Family Law Act is a marginal change relative to the complex jurisdictional issue which it might resolve. Should both levels of government fail to take action to make this simple amendment, this may be an area for counsel to bring a motion under s. 15(1) of the Charter to request declarative relief. There is room here for the court to exercise it’s constitutional authority and read in “former spouses” to s. 37(2) of the Family Law Act. This would ensure that divorced parties in this position would be put through additional procedure and expense by trying to access the justice system.