Rhys-Jones v. Rhys-Jones

Rhys-Jones v. Rhys-Jones Collection Decisions of the Court of Appeal Date 2000-04-20 Docket numbers C32644 Judges Carthy, James Joseph; Charron, Louise Vivianne; Rosenberg, Marc Subject Family Decision Content DATE: 20000420 DOCKET: C32644 COURT OF APPEAL FOR ONTARIO CARTHY, CHARRON and ROSENBERG JJ.A. BETWEEN: ) ) John E. Johnson, WYN RHYS-JONES ) for the appellant ) Applicant ) (Respondent in Appeal)) ) - and - ) Leonard Max, ) and Carrie Watkins, ELIZABETH KATHLEEN RHYS-JONES ) for the respondent ) Respondent ) (Appellant) ) Heard: February 15, 2000 ) On appeal from the order of Mr. Justice Manton dated June 30, 1999. ROSENBERG J.A.: [1] The question in this appeal is whether the Superior Court of Justice has jurisdiction to vary an order for spousal support made as part of an order for divorce obtained in Ontario under the Divorce Act, R.S.C. 1970 c. D-8, where neither party is a resident of Ontario and one of the spouses does not accept the jurisdiction of the court. The answer to that question depends on whether the provisions of the former Divorce Act or the provisions of the Divorce Act, R.S.C. 1985 2nd Supp., c. 3 apply. In my view, the latter provisions apply and accordingly, the Ontario court has no jurisdiction to vary the order. THE FACTS [2] The appellant, Elizabeth Kathleen Rhys-Jones, married the respondent, Wyn Rhys-Jones, in Ireland in 1959. Ten years later the couple moved to Ottawa where the respondent established his own medical practice. The couple had three children. In 1973, the parties separated and the appellant and the children moved back to Ireland. In 1974, the appellant and the children returned to Ottawa. On September 27, 1977, the parties were divorced in the Supreme Court of Ontario. The respondent was awarded custody of the children and ordered to pay the appellant $400 per month for her support and maintenance. It is alleged that the respondent has made no payments in accordance with this order since 1979. [3] The appellant moved back to Ireland, where she continues to reside. The respondent moved to the United States. He has lived in the United States since 1977 except for a six-year period when he was employed in Saudi Arabia. He is now a citizen of the United States and an employee of the United States government. The respondent has lived in different states since leaving Canada. [4] The appellant alleges that she has attempted to collect her outstanding spousal support. The latest attempt began in Florida, where the respondent now resides, in November 1994. By that time, the outstanding arrears exceeded $100,000. On June 9, 1999, the Circuit Court of the Sixth Judicial Circuit for Pasco County, Florida, domesticated (registered) the 1977 Ontario support order and there is now a pending action for unpaid support in that court. Those proceedings are governed by the Uniform Interstate Family Support Act, c. 88, Part VI, Fla. Stat. [5] The parties have filed affidavits from their Florida attorneys as to the procedure under the Florida statute. There is a dispute as to whether the Florida court has jurisdiction to “vacate” the arrears. [6] On March 12, 1999, the respondent brought an application in the Ontario Court (General Division) [now the Superior Court of Justice] to rescind or vary “retroactively and prospectively” the order for support and maintenance made by the Supreme Court of Ontario in 1977. Until this application, the respondent had made no attempt to vary the order and, in particular, he had no application pending at the time the former Divorce Act [the Divorce Act, 1968] was repealed and replaced by the present Divorce Act [the Divorce Act, 1985] on June 1, 1986. [7] On June 29, 1999, Manton J. heard a preliminary motion concerning the court’s jurisdiction and made an order that may be summarized as follows: (1) The Ontario court has jurisdiction to hear the respondent’s application; (2) The Notice of Application was properly served upon the appellant in Ireland; (3) The order for support and maintenance is “suspended” pending disposition of the application on its merits. [8] The appellant appeals from that part of the order holding that the Ontario court has jurisdiction. We were informed that the Florida court has taken no further proceedings pending the outcome of the proceedings in Ontario. Counsel for the respondent has also stated that it was understood by the parties and by Manton J. that his order did not preclude the appellant from subsequently moving under Rule 21.01(3)(c) to stay the Ontario proceedings on the basis that Ontario is not the convenient forum. REASONS OF THE MOTIONS JUDGE [9] Manton J. held that the Ontario court had jurisdiction because s. 11(2) of the Divorce Act, 1968 applied. Section 11 provides as follows: 11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely: (a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of (i) the wife, (ii) the children of the marriage, or (iii) the wife and the children of the marriage; (b) an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of (i) the husband, (ii) the children of the marriage, or (iii) the husband and the children of the marriage; and (c) an order providing for the custody, care and upbringing of the children of the marriage. (2) An order made pursuant to this section may be varied from time to time or rescinded by the court that made the order if it thinks it fit and just to do so having regard to the conduct of the parties since the making of the order or any change in the condition, means or other circumstances of either of them. [10] Manton J. acknowledged that if the provisions of the present Divorce Act applied, the Ontario court would have no jurisdiction to vary the 1977 order. Section 17 of the Divorce Act, 1985 provides that a “court of competent jurisdiction” may vary or rescind prospectively or retroactively a support order on application by either of the spouses. Section 5(1) of the Divorce Act, 1985 sets out the court’s jurisdiction: 5. (1) A court in a province has jurisdiction to hear and determine a variation proceeding if (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or (b) both former spouses accept the jurisdiction of the court. [11] Manton J. based his decision on s. 43(a), (b) and (c) of the Interpretation Act, R.S.C. 1985, c. I-21 which provide as follows: 43. Where an enactment is repealed in whole or in part, the repeal does not (a) revive any enactment or anything not in force or existing at the time when the repeal takes effect, (b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder, (c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, … ANALYSIS [12] In my view, the motions judge erred in holding that s. 11 of the Divorce Act, 1968 applied to these proceedings. As indicated, he based his decision on s. 43 of the Interpretation Act. However, there is a preliminary issue as to whether s. 43 is applicable. Section 3(1) of the Interpretation Act provides that, “Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act.” [Emphasis added.] The Divorce Act, 1985 contains transitional provisions, including ss. 33 and 34(1), which provide as follows: 33. Proceedings commenced under the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, before the day on which this Act comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with that Act as it read immediately before that day, as though it had not been repealed. 34. (1) Subject to subsection (1.1), any order made under subsection 11(1) of the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, including any order made pursuant to section 33 of this Act, and any order to the like effect made corollary to a decree of divorce granted in Canada before July 2, 1968 or granted on or after that day pursuant to subsection 22(2) of that Act may be varied, rescinded, suspended or enforced in accordance with sections 17 to 20, other than subsection 17(10), of this Act as if (a) the order were a support order or custody order, as the case may be; and (b) in subsections 17(4), (4.1) and (5), the words "or the last order made under subsection 11(2) of the Divorce Act, chapter D-8 of the Revised Statutes of Canada, 1970, varying that order" were added immediately before the words "or the last variation order made in respect of that order". [Emphasis added.] [13] As the appellant had not commenced his variation proceeding prior to the repeal of the 1968 Act, he cannot rely upon s. 33. On the other hand, although s. 34(1) uses the term "may" this nevertheless suggests an intention on the part of Parliament that an application for variation of an order under the old Act be dealt with in accordance with the procedure under the new Act. It does not appear that the transitional provisions of the 1985 Act were brought to the attention of the motions judge. [14] In any event, in my view, s. 43 of the Interpretation Act does not give the Ontario court jurisdiction under s. 11 of the 1968 Act. The only part of s. 43 that might apply is paragraph (c), which provides that the repeal does not “affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed”. In my view, the respondent did not have any acquired, accrued, or accruing right or privilege at the time he brought his application in the Ontario court in 1999. [15] The respondent was somewhat unclear in identifying the right that he claimed had acquired, accrued or was accruing. He appears to claim that where a court-ordered support obligation has been imposed upon a party pursuant to a statute that gives the party a right to vary or rescind the obligation, that right is preserved for all time. In other words, the right to vary vested at the very moment the support obligation was imposed. I cannot accept that proposition. [16] With respect to whether the right had "accrued", as Dickson J. said in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue (1975), 66 D.L.R. (3d) 449 (S.C.C.) at 463, “The mere right existing in the members of the community or any class of them at the date of the repeal of a statute to take advantage of the repealed statute is not a right accrued”. In reaching that conclusion, Dickson J. referred to Abbott v. Minister of Lands, [1895] A.C. 425 (P.C.) at 431. In Abbott, the Lord Chancellor said at p. 431: It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave it open to any one who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching. ... … [We] think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment. [17] To a similar effect, is the decision of the Supreme Court of Canada in Quebec (A.G.) v. Expropriation Tribunal, [1986] 1 S.C.R. 732 at 742, where Chouinard J. wrote: A vested right is one which exists and produces effects. That does not include a right which could have been exercised but was not, and which is no longer available under the law. The courts and scholarly commentators distinguish between a vested right and what they call either a possibility or an option. [Emphasis added.] [18] The respondent therefore had no accrued right to a variation, merely upon the making of the support order under the former legislation. At a minimum, he had to do something to exercise that right before the legislation was repealed. The decisions of the courts considering the effect of the 1978 amendments to the gun control provisions of the Criminal Code are of some assistance in resolving this issue. That legislation took certain firearms that had been in the “restricted” category, which could be legally owned if the owner had a registration certificate, and placed them in the prohibited category. A transitional provision provided that notwithstanding the new classification, the firearm could still be legally owned if it had been registered under the former legislation. In a series of cases,1 the courts had to consider whether an owner was entitled to a registration certificate under the former legislation. While those cases turned on their facts, the unifying principle was that even a mere application for the certificate was not sufficient.2 The process had to be almost complete before the courts would hold that the owner had an accrued right. The decision in Abell v. Royal Canadian Mounted Police Commissioner (1979), 49 C.C.C. (2d) 193 (Sask. C.A.) is illustrative of the reasoning. Bayda J.A. held as follows at p. 203: In the present case, the respondent, at the time of the repeal of the former s. 98 on January 1, 1978, was not merely a member of a general class who could "'take advantage" of the right to obtain a registration certificate afforded by s. 98 of the Code but was much more. She was an individual who had done acts to avail herself of that right. In fact she had done all she could possibly do towards availing herself of that right. Thus, on the face of the matter and barring some statutory provision either disentitling the respondent to a registration certificate for her sten gun, or disabling her from obtaining one until something more is done, the right she had entitling her to such a certificate was a "right ... acquired" or a "right ... accrued" and at the very least a "right ... accruing" within the meaning of s. 35 of the Interpretation Act [now s. 43]. [Emphasis added.] [19] The respondent’s position stands in stark contrast. He had done nothing to take advantage of the right to a variation. [20] I have also considered whether the respondent had an accrued right to a variation at the time when he theoretically could have met the statutory pre-requisite for a variation, namely a material change in circumstances. See s. 11(2) of the Divorce Act, 1968, s. 17(4.1) of the Divorce Act, 1985 and Moge v. Moge, [1992] 3 S.C.R. 813. As I understand it, at least one alleged material change in circumstances was when he claimed to have become “financially destitute” in 1977 or 1979. However, the reasoning in Gustavson, Abbott and Expropriation Tribunal would, in my view, still apply. As a result of a material change in circumstances, the respondent might have obtained a variation. Having taken no steps to exercise that “right” it was not an accrued right within the meaning of the Interpretation Act. [21] I also cannot find that the appellant had any accruing right at the time of the repeal since he had taken no steps at that time to take advantage of the repealed provisions to vary the order. [22] The Saskatchewan Court of Appeal dealt with s. 23(1)(c) of the Interpretation Act, R.S.S.A 1978, c. I-11, the equivalent of s. 43(c), in Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th) 706. In his concurring opinion, Cameron J.A. held at p. 715 that, “An abstract entitlement to take advantage of an enactment is not to be taken as a ‘right’ within the meaning of s. 23(1)(c) and cannot therefore be regarded as an ‘acquired’ or ‘accrued’ right, unaffected by repeal or amendment”. He then went on to consider the meaning of “accruing” at p. 719: In the context under consideration, I cannot think the legislature intended the term to mean that which may, in the sense of possibility, ripen into an acquired or accrued right or obligation at a future time. As will be readily apparent, the implications of that in relation to the effectiveness of repeal are simply too wide to be acceptable. That, coupled with the ordinary and grammatical sense of the language of the provision, leads me to believe that by "accruing right" and "accruing obligation" the legislature meant one which will, rather than may, in time accrue. The word "accruing", as it appears in the provision and applies to rights and obligations, is used in conjunction with "accrued". The one houses the same basic idea as the other, separated only in time. The difference is merely one of tense. And so I conclude that "accruing" rights and obligations are those necessarily or inevitably, not possibly or even probably, arising in due course. In other words I am of the opinion that before a right--and its correlative duty--may be said to be "accruing", the events giving rise to it or the conditions upon which it depends for its existence, must have been so set in train or engaged as inevitably to give rise in due course to the right and its corresponding duty. It follows, in a case such as this, that the mere entitlement to take advantage of a statute cannot be taken to constitute an "accruing" right or to give rise to an "accruing" obligation. Put another way, it cannot be said that, because the right is there to be had, it is accruing. That would violate the language and render repeal altogether ineffective. Nor can entitlement combined with intention to take advantage of an enactment suffice. That, too, would distort the language and cut into the effectiveness of repeal. Entitlement and intention, coupled with a positive step toward realizing the right, is getting closer to the mark. But the taking of some step or the doing of some act, of whatever kind and however far removed, toward acquiring a statutory right is insufficient to turn what would otherwise have been nothing more than a mere "hope or expectation" into an "accruing right" or "accruing obligation". The required element of inevitability is lacking. [Emphasis added.] [23] The same may be said in this case. The respondent took no steps towards realizing his “right” until years after the repeal of the statute. He had at most a "hope or expectation" that in the future he could apply for a variation. He did not therefore have an accruing right. [24] This part of the Scott decision was referred to with approval by the Supreme Court of Canada in R. v. Puskas, [1998] 1 S.C.R. 1207 at 1216, a case concerning the repeal of a provision of the Criminal Code that formerly provided an appeal as of right to the Supreme Court of Canada. Lamer C.J.C. adopted this definition of the terms “acquired” “accrued” and “accruing”. A right can only be said to have been "acquired" when the right-holder can actually exercise it. The term "accrue" is simply a passive way of stating the same concept (a person "acquires" a right; a right "accrues" to a person). Similarly, something can only be said to be "accruing" if its eventual accrual is certain, and not conditional on future events (Scott v. College of Physicians and Surgeons of Saskatchewan (1992), 95 D.L.R. (4th) 706 (Sask. C.A.) at p. 719). In other words, a right cannot accrue, be acquired, or be accruing until all conditions precedent to the exercise of the right have been fulfilled. [Emphasis added] [25] Returning to Scott, Vancise J.A. (Jackson J.A. concurring) also provided a helpful definition of these terms, at p. 727: Left with no definition, the courts have established two criteria or factors which will help to determine whether a right is acquired, accrued or accruing. First, one must establish a tangible or particular legal right, the right cannot be abstract, it must be more than a possibility, more than a mere expectation; and, secondly, establish that the right was sufficiently exercised or solidified before the repeal of the enactment to justify its protection. [26] Under this test, as well, the respondent did not have a right within the meaning of s. 43(c). Up to the time of the repeal of the 1968 Act, his right was abstract. It was a mere expectation. He had also taken no steps to exercise or solidify the right before the repeal. [27] To a similar effect, is the decision of this court in Re Rai (1980), 27 O.R. (2d) 425 (C.A.). In that case, Weatherson J.A. considered the meaning of the provincial equivalent of s. 43 and held at p. 432: Manifestly, it cannot serve to preserve abstract rights, such as those which all members of the community or a class of the community enjoy. However, if procedural steps have been taken to enforce or establish a particular right, that right must be accruing. [Emphasis added.] [28] To conclude, in my view, Parliament has manifested an intention that applications to vary be brought under the new legislation. Alternatively, the respondent did not have a right under the old legislation that was preserved by s. 43 of the Interpretation Act. It follows, that the respondent cannot take advantage of s. 11 of the former Act. [29] It was not argued that the Ontario courts have an inherent right to vary an order for spousal support apart from the statute. In any event, in Ramsay v. Ramsay (1977), 13 O.R. (2d) 85 (C.A.) this court held that there is no such inherent right. [30] Finally, I would make this comment. Much was said by counsel for the respondent about the unfairness to the respondent if he had no remedy in Ontario to deal with the arrears. As I have said, there was conflicting affidavit evidence as to the effect of the Florida statute and whether the respondent could obtain some relief under that legislation. While my own view is that the Florida legislation does appear to permit the court to deal with the arrears and refuse to enforce some or all of them, that matter was not fully argued before Manton J. or before this court. It does not strike me as unfair to require the respondent to proceed in accordance with the legislation in the jurisdiction that he has made his home. Nor would it be unfair for courts in this country to decline jurisdiction to deal with an order that was made over twenty years ago and where the parties no longer reside in this country and have not done so for many years. However, I need not finally decide that matter in view of my conclusion on the court’s jurisdiction and bearing in mind that the decision of Manton J. did not preclude the appellant from subsequently pursuing her motion under rule 21.01(3)(c). DISPOSITION [31] Accordingly, I would allow the appeal, set aside the order of Manton J. and dismiss the application to vary the order for spousal support. The appellant is entitled to her costs of the appeal and of the proceedings before Manton J. RELEASED: APR 20 2000 Signed: "M. Rosenberg J.A." JJC "I agree J.J. Carthy J.A." "I agree. Louise Charron J.A." _______________________________ 1 Lemyre v. Commissioner of RCMP, [1979] 2 F.C. 362 (C.A.), aff'g [1978] 2 F.C. 453 (T.D.), Haines v. Canada (Attorney General) (1979), 32 N.S.R. (2d) 271 (C.A.), aff'g (1978), 47 C.C.C. (2d) 126 (N.S. Co. Ct.), aff'g (1978), 32 N.S.R. (2d) 276 (Prov. Ct.). Also see: Martinoff v. Gossen, [1979] 1 F.C. 327 (T.D.). 2 I note that under the transitional provisions in the Divorce Act, 1985, the respondent would have had the right to continue his application under the former legislation, if he had initiated it prior to the repeal. Of course, that did not occur.