Custody Dispute and Mistaken Jurisdiction

Here’s a sad bit of reading — seven paragraphs of an appellate judgment concerning children handed down by an excellent bench (Noah v. Bouchard, 2013 ONCA 383).

[1] The appellant Johnny Bouchard appeals from the order of the Superior Court of Justice dated April 5, 2012, dismissing the appellant’s claim for custody of the parties’ two children, Tyler (age 10) and Nicholas (age 8). The application judge ordered that the custody and access arrangements in existence at the time of trial pursuant to the earlier order of Judge MacKenzie of the Ontario Court of Justice should continue and that a review of the orders in respect of custody and child support should take place after December 31, 2012. He subsequently conducted that review and again declined to alter the arrangements as ordered by the Ontario Court of Justice.

[2] The appellant contends that the order under appeal in effect varied the order of the Ontario Court of Justice made under s. 29 of the Children’s Law Reform Act, and that the Superior Court of Justice had no jurisdiction to make the order.

[3] We accept this submission. The respondent should have brought a motion to change the Order of Judge MacKenzie of the Ontario Court of Justice and a separate application regarding her claims for equitable relief in the Superior Court of Justice. She ought to have then requested a consolidation and transfer of the lower court proceeding to the Superior Court.

[4] The Children’s Lawyer counters this analysis with the assertion that this court has jurisdiction, and should exercise it, to permit the consolidation and transfer of the proceeding to the Superior Court of Justice pursuant to ss. 110(1) and 134(1) of the Courts of Justice Act :

110(1) Where a proceeding is brought or taken before the wrong court… it may be transferred … to the proper court….

134(1) Unless otherwise provided, a court to which an appeal is taken may,

(c) make any other order or decision that is considered just.

[5] We do not accept this submission. The wrong court in this case is the Superior Court of Justice because of the existing proceeding and Order in the Ontario Court of Justice. Section 110(1) would permit this court to transfer the proceeding back to the Ontario Court of Justice. However, this does not accomplish the goal sought by the Children’s Lawyer, namely, a disposition on the merits of the appeal from the decision of the Superior Court of Justice. In oral argument, counsel for the children candidly admitted that, in order to be successful in achieving this objective, s. 110(1) would have to be interpreted to permit a double transfer, first from the Superior Court to the Ontario Court and then from the Ontario Court back to the Superior Court. In our view, the straightforward language of s. 110(1) does not support such a convoluted result.

[6] Having said that, we observe that after Judge MacKenzie’s order was made in the Ontario Court of Justice, both parties mistakenly initiated proceedings in the Superior Court of Justice relating to the custody of Tyler and Nicholas. This ultimately led to the application judge’s comprehensive reasons dealing with this issue. As the matter was fully argued before us, we have decided to provide comments on the substantive issues raised by the appeal for the potential benefit of these parties and other parties and judges involved in similar proceedings.

[7] In addition to the jurisdictional issue, the appellant challenged the trial judge’s decision on two grounds. . . .

Imagine trying to explain this in some detail to your neighbour. When the fate of children is bound up with legalistic wayfinding as tangled as this, a game of snakes and ladders in effect, something has gone profoundly wrong.


  1. And we wonder why the public thinks there’s something wrong with our legal system …

  2. Simon and Susan,

    In this case, as is too often the case where the wrong court is chosen, it’s not the legal system. It’s the lawyers or the judge.

    Simon didn’t quote para. 14:

    [14] Since both parties mistakenly brought proceedings in the Superior Court of Justice, each party should bear its own costs of the appeal. The Office of the Children’s Lawyer should neither pay nor receive costs.

    I never practiced family law. Nonetheless, I found it very easy to figure out, from Children’s Law Reform Act, RSO 1990, c C.12, s. 28 & 29 that the parties, having started in the Ontario Court of Justice should have stayed there, absent an SCJ order transferring the OCJ proceedings to the SCJ.

    Once again, one of those nasty “c” words seems to be involved: carelessness of the lawyers and a first instance judge who ought to have known better.

  3. I have practiced a bit of family law, though never in Ontario, and I don’t know the difference between the two courts mentioned.

    What I have experienced is careless litigators who have used the cry of “please won’t somebody think of the children” as an argument against any claim related to lack of jurisdiction, non-compliance with the rules, etc.

    For better or worse, our courts have decided that jurisdiction matters and the rules matter.

  4. @Mike: Of course rules matter, I agree. But they need to be clear and simple enough so that even weakly prepared lawyers can find their way, especially where children are concerned. So I’m crying “please won’t someone think of the children” but at a systemic level.

    @David I don’t disagree that the lawyers and a judge screwed up. My point was that we have a system for the assistance of children where this sort of a perfect (jurisdictional) storm can actually occur. It may be clear to you and me who should have done what where, but it’s evidently not so clear to everyone. Simplify. Simplify.