Elgner v. Elgner, (2011) 282 O.A.C. 28 (CA)

• Judge: Cronk, Gillese and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 13, 2011
• Jurisdiction: Ontario
• Citations: (2011), 282 O.A.C. 28 (CA);2011 ONCA 483

Elgner v. Elgner (2011), 282 O.A.C. 28 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JL.003

Carol Ann Elgner (applicant/respondent) v. Claude Frederick Elgner (respondent/appellant)

In The Matter Of an Application under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)

(C53108; 2011 ONCA 483)

Indexed As: Elgner v. Elgner

Ontario Court of Appeal

Cronk, Gillese and MacFarland, JJ.A.

June 29, 2011.

Summary:

The parties separated in 2007 after 33 years of marriage. In 2009, pursuant to s. 15.2 of the Divorce Act, the husband was ordered to pay interim spousal support of $110,000 per month, and retroactive spousal support of $3,360,000 for the period from January 2008 to December 2009 (the interim order). The husband wished to appeal the interim order. He moved to file a notice of appeal as of right or, if leave to appeal was required, that leave be granted.

The Ontario Divisional Court, per Sachs, J., in a decision reported at 267 O.A.C. 1, dismissed the motion. The husband moved for a review of Sachs, J.'s order by a full panel of the court. He sought only a review of that part of the order dismissing his motion for an order permitting him to file his appeal as of right. He did not seek a review of the refusal to grant leave to appeal.

The Ontario Divisional Court, in a decision reported at 268 O.A.C. 267, dismissed the motion, holding that leave to appeal the interim order was required. With leave of the Court of Appeal, the husband brought this appeal. He argued that he was entitled to appeal the interim order as of right, based on s. 21(1) of the Divorce Act, which provided that, with two exceptions that did not apply in the present case, "... an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act". As the Divorce Act was federal legislation, he argued that the right of appeal was paramount over s. 19(1)(b) of the Ontario Courts of Justice Act (CJA).

The Ontario Court of Appeal dismissed the appeal. "[I]t is the interplay between ss. 21(1) and (6) of the Divorce Act, considered within the context of the purpose of the provision and the underlying philosophy of the Act, that leads to the conclusion that in Ontario, the appeal of interlocutory orders under the Divorce Act requires leave to appeal from the Divisional Court." Further, s. 19(1) of the CJA did not frustrate the federal purpose behind s. 21 of the Divorce Act. As the two provisions operated harmoniously, the doctrine of paramountcy was not engaged.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - Requirement of conflict or repugnancy - [See third Family Law - Topic 4162 ].

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - An interim spousal support order was made under the Divorce Act - The issue to be decided on this appeal was whether the interim order could be appealed as of right or only with leave - Its resolution involved a significant constitutional challenge based on the doctrine of federal paramountcy - There was conflicting case law from across Canada - In Ontario, s. 19(1)(b) of the Courts of Justice Act (CJA) required leave to appeal from interlocutory orders of judges of the Superior Court of Justice - The Ontario Court of Appeal concluded that "the Divisional Court correctly held that by virtue of s. 21(6) of the Divorce Act, an appeal from an interlocutory order made under the Divorce Act is subject to the leave requirement in s. 19(1) of the CJA. To conclude that s. 21(1) creates a direct right of appeal, without leave, is to ignore ss. 21(6) and 25 of the Divorce Act, and the constitutional analysis that must be undertaken before applying the doctrine of paramountcy" - See paragraph 33.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - An interim spousal support order was made under the Divorce Act - The appellant argued that he was entitled to appeal the interim order as of right and that leave to appeal was not required - He submitted that the court below erred by relying on policy considerations, namely, to discourage appeals from interim orders in family law matters because they would cause the parties additional expense, emotional anguish and delay - The Ontario Court of Appeal stated that the Divisional Court was simply taking into consideration the object of the amendments to the 1985 Divorce Act - In light of the modern approach to statutory interpretation, it was entirely appropriate for the courts below to take into account that consideration - See paragraphs 44 and 45.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - An interim spousal support order was made under the Divorce Act - The issue to be decided on this appeal was whether the order could be appealed as of right or only with leave - Its resolution involved a significant constitutional challenge based on the doctrine of federal paramountcy - The appellant contended that s. 21(1) of the Divorce Act gave the right of appeal for all orders, interim and final, made under the Divorce Act - In Ontario, s. 19(1)(b) of the Courts of Justice Act (CJA) required leave to appeal from interlocutory orders of judges of the Superior Court of Justice - The Ontario Court of Appeal stated that "compliance with both s. 21 of the Divorce Act and s. 19(1) of the CJA is possible. A party may comply with both by applying for leave to appeal pursuant to s. 19(1)(b) of the CJA. Furthermore ... s. 19(1) does not frustrate the federal purpose behind s. 21 of the Divorce Act. As the two provisions operate harmoniously, the doctrine of paramountcy is not engaged" - See paragraph 49.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - An interim spousal support order was made under the Divorce Act - The appellant argued that he was entitled to appeal the interim order as of right and that leave to appeal was not required - Section 21(1) of the Divorce Act provided that, with two exceptions that did not apply in the present case, "... an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act" - In Ontario, s. 19(1)(b) of the Courts of Justice Act (CJA) required leave to appeal from interlocutory orders of judges of the Superior Court of Justice - The Ontario Court of Appeal considered the words of s. 21(1), in context, the object of the Divorce Act and the intention of Parliament (the modern approach to statutory interpretation) - "In conclusion, when ss. 21(1) and (6) of the Divorce Act are given their ordinary meaning and read in their entire context, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is clear that the right of appeal given by s. 21(1) is to be exercised in accordance with the ordinary procedures governing appeals of that nature. In Ontario, the ordinary procedure requires leave, if the matter to be appealed is an interlocutory order of a judge of the Superior Court of Justice" - See paragraph 55.

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See second and fourth Family Law - Topic 4162 ].

Cases Noticed:

Kral v. Kral (1994), 68 O.A.C. 188 (Div. Ct.), consd. [para. 12].

Colletta v. Colletta (1992), 57 O.A.C. 283; 10 O.R.(3d) 464 (C.A.), affd. [paras. 15, 37].

Potts v. Potts (1993), 63 O.A.C. 175; 13 O.R.(3d) 284 (Div. Ct.), refd to. [para. 15].

Kelvin Energy - see Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al.

Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al., [1992] 3 S.C.R. 235; 143 N.R. 191; 51 Q.A.C. 49, refd to. [paras. 22, 32]; dist. [paras. 52, 53].

G.M. v. F.L., 2009 QCCA 649, refd to. [para. 32].

Farden v. Farden (1996), 141 Sask.R. 178; 114 W.A.C. 178 (C.A.), refd to. [para. 32].

Rimmer v. Adshead (2003), 232 Sask.R. 68; 294 W.A.C. 68; 224 D.L.R.(4th) 372 (C.A.), refd to. [para. 32].

DeFehr v. DeFehr - see De Fehr v. De Fehr.

De Fehr v. De Fehr, [2002] B.C.A.C. Uned. 144; 2002 BCCA 577, refd to. [para. 32].

792266 Ontario Ltd. v. Monarch Trust Co. (Liquidation) (1996), 94 O.A.C. 384 (C.A.), refd to. [para. 38].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, appld. [para. 43].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 46].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 19(1)(b) [paras. 9, 30].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 21(1) [paras. 8, 28]; sect. 21(6) [paras. 13, 28]; sect. 25 [para. 29].

Counsel:

Charles E. Beall and Karon C. Bales, for the appellant;

Julie K. Hannaford, Golnaz S. Simaei, Harold Niman and Vanessa Amyot, for the respondent;

Daniel Guttman, for the intervenor, the Attorney General of Ontario.

This appeal was heard on April 13, 2011, before Cronk, Gillese and MacFarland, JJ.A., of the Ontario Court of Appeal. In reasons written by Gillese, J.A., the Court of Appeal released the following decision on June 29, 2011.