) ) Vincenzo Mattina Applicant / Appellant on appeal – v. –, 2018 ONSC 1569

CITATION : Mattina v. Mattina, 2018 ONSC 1569 DIVISIONAL COURT FILE NO.: 00885/17 DATE: 2018 03 07 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT C. Horkins, Matheson, Glustein JJ.

BETWEEN: ) ) Vincenzo Mattina Applicant / Appellant on appeal – and – Raffaella Mattina Respondent / Respondent on appeal ) ) ) ) ) ) ) ) ) Martha McCarthy and Maureen Edwards , for the Applicant/ Appellant Salvatore Garcea and Gloria Nardi-Bell , for the Respondent ) ) HEARD at Hamilton: February 6, 2018 The court introduction [ 1 ] The appellant Vincenzo Mattina (the “father”) appeals the final custody and access order of Mazza J. dated September 26, 2017 (the “Mazza order”). [ 2 ] The Mazza order gave the respondent Raffaella Mattina (the “mother”) sole custody of the children and access to the father at the discretion of the children, in consultation with the mother. [ 3 ] The Divisional Court does not have jurisdiction to hear this appeal. [ 4 ] The panel raised the issue of this court’s jurisdiction during the hearing of the appeal.

The circumstances in which the issue arose are unusual as explained below. Pursuant to the panel’s direction, the parties filed written submissions on the jurisdiction issue. The Background [ 5 ] The parties were married in 1998 and separated in 2013. They have three children. The eldest is now 18. The two younger children are N, who is 16 years old and A, who is 10 years old. [ 6 ] The father issued his application in June 2013, in Family Court, in Hamilton. The mother filed her Answer.

The parties request the same relief: a divorce, equalization of property, and custody and access of the children. [ 7 ] During the course of this application, the court ordered a custody and access assessment under s. 30 of the Children's Law Reform Act R.S.O. 1990, c. C.12. This assessment was completed and a lengthy report was provided to the court. A second s. 30 order was issued to obtain an updated report from the assessor. This updated report was completed on May 25, 2015. [ 8 ] The application was placed on the trial list in Hamilton for the 2016 November/December sittings and was not reached.

It was also not reached for trial in June 2017. The trial was then rescheduled to October 2, 2017. [ 9 ] Since April 2013, the father has had access to the children less than five times. Except for one brief visit, the limited access occurred during the s. 30 assessment process. The father believes that the children have been alienated from him. The mother denies that she has alienated the children from their father. She states that the father’s conduct is to blame for the children’s refusal to see him.

[ 10 ] When the father learned that the trial would not likely be reached in June 2017, he brought a motion seeking sole interim custody of the children for 90 days (with no access to the mother) and an order directing that the parents and children participate in a program known as Family Bridges during the period of interim custody. The father was seeking the assistance of Family Bridges to connect with the children. In the alternative, the father sought an order for a directed trial with evidence from Michelle Hayes, the s. 30 assessor and Dr. Barbara Fidler on the issue of alienation. [ 11 ] In response, the mother brought a

summary judgment motion seeking final custody, with access to the father at the discretion of the children. [ 12 ] The motion was heard on August 22, 2017. On September 26, 2017, Mazza J. issued a final order. He dismissed the father’s motion and gave the mother sole custody of the children N and A, with access at the children’s discretion, in consultation with the mother. [ 13 ] On October 4, 2017, the father appealed the Mazza order to the Divisional Court.

Counsel for the mother notified the father’s counsel that the appeal had been brought in the wrong court. [ 14 ] On October 19, 2017, the father brought a motion in the Superior Court in Hamilton. He sought an order expediting the hearing of his appeal and an order initializing the names of the parties in the title of proceeding. [ 15 ] The motion was heard by Justice L. M. Walters of the Superior Court in Hamilton, sitting as a single judge of the Divisional Court (“the motion judge”).

The decision of the motion judge deals primarily with the issue of whether the Divisional Court has jurisdiction to hear the father’s appeal. The mother argued that the Divisional Court did not have jurisdiction and that the appeal should be before the Ontario Court of Appeal. The father argued that the appeal was to the Divisional Court. [ 16 ] The parties consented to an order expediting the appeal. The motion judge refused to initial the title of proceeding. The motion judge considered the jurisdiction issue and concluded that the Divisional Court had jurisdiction.

The mother did not appeal this order. [ 17 ] When the appeal came before this panel, the parties did not raise the jurisdiction issue. It appears that they had decided to rely on the motion judge’s order, even though the mother’s counsel maintained her position that the appeal should be before the Court of Appeal. [ 18 ] During the hearing of the appeal, the court became concerned with the jurisdiction issue and made this known to the parties and counsel. [ 19 ] Counsel asked the panel to assume jurisdiction. It was suggested that this court had jurisdiction because the motion judge had decided the issue.

As well the parties were prepared to consent to this court assuming jurisdiction, to avoid further delay in the hearing of the appeal. [ 20 ] As the court explained at the hearing, the Divisional Court is a statutory court. Jurisdiction cannot be conferred on the court by the consent of the parties or the previous order. The court either has jurisdiction under the Courts of Justice Act R.S.O. 1990, Chap. C.43, or it does not. In this case the motion judge reached the wrong conclusion. The appeal must be heard by the Ontario Court of Appeal.

Our reasons follow. analysis of jurisdiction [ 21 ] We start with a review of the relevant statutory provisions. [ 22 ] The Mazza order was a final order made by a judge of the Family Court, a branch of the Superior Court ( Courts of Justice Act s. 21.1(1)). [ 23 ] The appeal jurisdiction of the Divisional Court is set out in s. 19(1) of the Courts of Justice Act as follows: 19

(1) An appeal lies to the Divisional Court from, (

a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2) ; (

b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; (

c) a final order of a master or case management master. (1.0.1) Clauses (1) (

a) and (

b) do not apply to orders made under

section 137.1.

(1.1) If the notice of appeal is filed before October 1, 2007, clause (1) (

a) applies in respect of a final order, (

a) for a single payment of not more than $25,000, exclusive of costs; (

b) for periodic payments that amount to not more than $25,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order; (

c) dismissing a claim for an amount that is not more than the amount set out in clause (

a) or (b); or (

d) dismissing a claim for an amount that is more than the amount set out in clause (

a) or (

b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (

a) or (b).

(1.2) If the notice of appeal is filed on or after October 1, 2007, clause (1) (

a) applies in respect of a final order, (

a) for a single payment of not more than $50,000, exclusive of costs; (

b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order; (

c) dismissing a claim for an amount that is not more than the amount set out in clause (

a) or (b); or (

d) dismissing a claim for an amount that is more than the amount set out in clause (

a) or (

b) and in respect of which the judge or jury indicates that if the claim had been allowed the amount awarded would have been not more than the amount set out in clause (

a) or (b) [Emphasis added] [ 24 ] It is clear from s. 19(1) (

a) that a final Superior Court order is only appealed to the Divisional Court if it is an order that falls within the monetary limits of s. 19. [ 25 ] The Mazza order is a final custody and access order. It is not an order for payment of any money or the dismissal of a claim for an amount that falls within the monetary limits of s. 19. [ 26 ] The appeal of a final Superior Court order that does not fall within s. 19 of the Courts of Justice Act is addressed in s. 6(1) (

b) of the Courts of Justice Act . The appeal lies to the Court of Appeal as follows:

(1) An appeal lies to the Court of Appeal from, … (

b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19 (1) (

a) or an order from which an appeal lies to the Divisional Court under another Act; [ 27 ] The motion judge found that

Part III of The Children's Law Reform Act provides the appeal route for the Mazza order.

Part III of this Act deals with “Custody, Access and Guardianship”. “Court” is defined under

Part III as follows: 18

(1) In this Part, “court” means the Ontario Court of Justice, the Family Court or the Superior Court of Justice; [ 28 ] The appeal of an order made under

Part III is set out in s. 73 as follows: s. 73 An appeal from an order of the Ontario Court of Justice under this

Part lies to the Superior Court of Justice. [ 29 ] The appeal route in s. 73 of the Children's Law Reform Act must be read together with s. 21.9.1 of the Courts of Justice Act that states: A statutory provision referred to in the

Schedule to

section 21.8 or in

section 21.12 that provides for appeals from decisions of the Ontario Court of Justice to the Superior Court of Justice shall be deemed to provide for appeals from decisions of the Family Court to the Divisional Court . [Emphasis added] [ 30 ] The “Schedule” to s. 21.8 of the Courts of Justice Act lists the Children's Law Reform Act . [ 31 ] The motion judge found that the Mazza order was made under the Children's Law Reform Act .

As a result, she found that pursuant to s.73 of this Act, the Divisional Court had jurisdiction to hear the father’s appeal. [ 32 ] The reasons of Mazza J. do not identify the statute under which he made the final custody and access order. Jurisdiction to hear an appeal of the Mazza order depends on the Act under which the order was made. [ 33 ] If the order was made under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.), s. 6(1) (

b) of the Courts of Justice Act applies and the appeal is to the Court of Appeal. If the order was made under the Children’s Law Reform Act , s. 73 of that Act and s. 21.9.1 of the Courts of Justice Act apply and the appeal is to the Divisional Court. [ 34 ] When the panel raised the jurisdiction issue with counsel during the appeal, counsel for the father agreed that if the order was made under the Divorce Act the appeal lies to the Court of Appeal. [ 35 ] In this case it is clear that the order was made under the Divorce Act and as a result the appeal must be heard by the Court of Appeal pursuant to s. 6 (1) (

b) of the Courts of Justice Act . [ 36 ] In the pleadings, the parties both sought custody and access under the Divorce Act and the Children's Law Reform Act . Both Acts allow the court to make custody and access orders. [ 37 ] When a divorce is claimed, as in this case, the federal statute prevails. The Divorce Act governs and claims for custody and access under the Children's Law Reform Act are stayed as set out in s. 27 of the Children's Law Reform Act : 27 Where an action for divorce is commenced under the Divorce Act (Canada) , any application under this

Part in respect of custody of or

access to a child that has not been determined is stayed except by leave of the court. [ 38 ] In Bridgeman v Balfour 2012 ONSC 6583 at paras. 8-11 , the court correctly concluded that when parties seek claims under the Children's Law Reform Act and the Divorce Act , the custody and access claims are governed by the federal act. Claims for custody and access are stayed pursuant to s. 27. [ 39 ] In this case the parties did not request leave of the court to have the motions before Mazza J. dealt with under the Children's Law Reform Act .

As a result, the proceedings under that Act remained stayed. [ 40 ] The motion judge did not refer to s. 27 of the Children's Law Reform Act in her reasons. Instead the motion judge identified three reasons why the appeal was to the Divisional Court. As explained below, these reasons are flawed and cannot confer jurisdiction on this court. [ 41 ] First, the motion judge found that a final order for custody or access cannot be made until a divorce is granted. There is no authority to support this statement and it is inconsistent with the Divorce Act . [ 42 ]

Section 16 of the Divorce Act allows the court to make interim and final custody and access orders as follows: 16

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1). [ 43 ] An order under s. 16 can be made whether the parties are divorced or not.

This is clear from the meaning of spouse as set out in s. 15 as follows: In sections 15.1 to 16, spouse has the meaning assigned by subsection 2(1), and includes a former spouse. [ 44 ] Second, the motion judge relied on the fact that two s. 30 assessment orders had been made under the Children's Law Reform Act .

The motion judge’s reasons suggest that since the assessment orders were made under the Children's Law Reform Act , the Mazza order must have been made under this Act as well. [ 45 ] The Court had jurisdiction to issue the s. 30 assessment orders under the Children's Law Reform Act because the Divorce Act does not address this type of relief. As a result the doctrine of paramountcy was not engaged when the s. 30 assessment motions were brought.

The fact that two orders were made under s.30 of the Children's Law Reform Act does not override s. 27 of this Act that stays the custody and access claims under the Children's Law Reform Act in favour of the Divorce Act . [ 46 ] Third, the motion judge relied on Family Law Rule 16 to support her conclusion that the Mazza order must have been made under the Children's Law Reform Act .

At para. 38 the motion judge states: Lastly, although Mazza J.’s reasons do not specifically indicate the Order is made pursuant to the Children's Law Reform Act , he does specifically make reference to [rule] 16 of the Family Law Rules :

(2) A motion for judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16(2) . This clearly suggest that this matter was not proceeding under the Divorce Act . [ 47 ] It appears that the motion judge was of the view that

summary judgment for custody and access under Family Law Rule 16 is not available if a divorce is claimed and therefore the Mazza order had to be made under the Children's Law Reform Act . [ 48 ] It is not the intent of Family Law Rule 16(2) to exclude non-divorce claims from

summary judgment when there is a divorce sought under the Divorce Act . This is confirmed by Family Law Rule 16(3), which provides the appropriate procedure to address the divorce claim. [ 49 ] Furthermore, courts frequently make final custody and access orders and direct that the divorce be dealt with later on an uncontested basis (see Bridgeman v Balfour at paras. 8-10 ).

Finally, even if we were to accept the motion judge’s view of rule 16, this is a procedural rule and it cannot overtake the doctrine of paramountcy and the stay that is set out in s. 27 of the Children's Law Reform Act . [ 50 ] It appears that the motion judge also relied on two decisions of the Court of Appeal ( Christodoulou v. Christodoulou 2010 ONCA 93 (“ Christodoulou ”) and Marchildon v. Beitz 2012 ONCA 668 (“ Marchildon ”)) to support her decision.

These decisions correctly held that the appeal of a Family Court order was to the Divisional Court because the orders in question were made under the Children's Law Reform Act and s. 27 of the Children's Law Reform Act was not triggered [ 51 ] In Christodoulou , the order at issue was for relief under the Hague Convention under s. 46 of the Children’s Law Reform Act , which was concurrent relief not available under the Divorce Act .

In Marchildon , the order at issue was made under s. 23 of the Children’s Law Reform Act , and there is no reference in the decision to any claim made or relief sought under the Divorce Act . [ 52 ] The appeal route from a final order made in a family dispute is not straightforward. The statutory provisions governing appeals in family law proceedings “are a source of much confusion” (see Marchildon at para. 4 ). In this case the confusion has unfortunately caused unnecessary expense and delay for a high conflict family.

Transfer of Appeal [53] Section 110(1) of the Courts of Justice Act allows this court to transfer the father’s appeal to the Court of Appeal. [54] The mother argues that the appeal should be dismissed because the father has not satisfied the three factors in Dunnington v.656956 Ontario Ltd., (1991) (ON SC), 9 OR (3d) 124 (Div.

Ct.) where the court held that a transfer was discretionarybased on the following factors: 1) Does the appellant have a meritorious appeal? 2) Will the respondent suffer undue prejudice while the appeal is waiting to be heard? 3) Has the appellant moved expeditiously once it was known that jurisdiction was disputed? [55] We observe that courts transfer appeals under s. 110(1) without consideration of these factors (CIBC Mortgages Inc. (FirstLineMortgages) v. Computershare, 2015 ONCA 846).

That said, our consideration of the factors and the circumstances of this case, supportour decision to transfer this appeal to the Court of Appeal. [56] The circumstances in this case are unusual. The parties raised the issue of jurisdiction “expeditiously” and were ordered toproceed with the appeal in the Divisional Court. They relied on the decision of the motion judge.

The mother’s counsel continued tohold the view that the Divisional Court had no jurisdiction and yet she did not appeal the motion judge’s order or raise her concern withthis panel until this court raised the issue of jurisdiction with counsel. [57] A consideration of the merits of the father’s appeal does not require a detailed analysis. This is not a case where the appeal isfrivolous or clearly without merit. The father has lost all meaningful contact with his children. [58] Michelle Hayes conducted two s. 30 assessments. It is obvious from her s. 30 reports that this is a complicated case.

Any hopeof the father establishing a meaningful relationship with the children will require expert help. In her first report she recommended“intensive therapeutic weekend intervention”. This was ordered by McLaren J. and the intervention never occurred. In the second report,Ms. Hayes states that the children “are currently at a place of significant empowerment, so much so” that the order of McLaren J. was“disregarded as a result of the children’s refusal” to participate. Ms. Hayes once again recommended intervention.

She recommendedthat the “children and each of the parents engage in parent-child interaction therapy”. The children refused to see their father and so thisnever occurred. [59] The Mazza order continues to empower the children. In effect this is a final no access order because the children refuse to seetheir father. For the older child N, soon to be 17 years old, this may be appropriate. The youngest child A is 10 years old. Whether theMazza order is in this child’s best interests surely deserves consideration on an appeal. [60] Final termination of access, without a trial, is a serious step.

Given the detailed s. 30 assessment reports recommendingintervention, we conclude that the father has a meritorious appeal. [61] The mother argues that the delay in having the appeal heard by the Court of Appeal is prejudicial to her and the children. Shesays that it will be costly “both emotionally and financially”. The issue of prejudice must be viewed through the lens of the best interestsof the children. Since the Mazza order in effect terminates the father’s access, we reject the mother’s submission.

It is in the bestinterests of the children that the father’s appeal be heard as soon as possible. [62] We order that the father’s appeal be transferred to the Ontario Court of Appeal. We respectfully urge the Court of Appeal toexpedite the hearing of the father’s appeal. conclusion [63] We make the following orders:

(1) Vincenzo Mattina’s appeal of the order of Justice Mazza dated September 26, 2017 is transferred to the Court of Appeal.

(2) The costs of the attendance before the Divisional Court are adjourned to the court hearing the appeal. ___________________________ C. Horkins J. ___________________________

Matheson J. ___________________________ Glustein J. Released: March 7, 2018 CITATION : Mattina v. Mattina, 2018 ONSC 1569 DIVISIONAL COURT FILE NO.: 00885/17 DATE: 2018 03 07 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT C. Horkins, Matheson, Glustein JJ. BETWEEN: Vincenzo Mattina Applicant / Appellant on appeal – and – Raffaella Mattina Respondent / Respondent on appeal REASONS FOR JUDGMENT THE COURT Released: March 7, 2018