A Toronto man is going to the Supreme Court for the right to appeal a record-breaking interim spousal support order.
The businessman, who earns around $3 million a year, was also ordered to pay $3.4 million in retroactive support for the period January 2008 to December 2009 following the couple’s separation in 2007.
Claude Elgner believes a section of the federal Divorce Act allows him to appeal the order as of right, overruling by the doctrine of federal paramountcy provisions of the provincial Courts of Justice Act, which requires leave to appeal interlocutory decisions of the Superior Court of Justice.
In June, Ontario’s Court of Appeal rejected Elgner’s argument and reinforced the requirement for leave to appeal to the Divisional Court, putting it at odds with the highest courts in British Columbia, Saskatchewan, and Quebec, all of which have decided leave is not required when appealing interim orders under the Divorce Act.
However, appeal courts in New Brunswick and Nova Scotia have made decisions that mirror the one in Ontario.
His lawyers, Karon Bales and Charles Beall of Bales Beall LLP, say the Supreme Court needs to step in to clear up the confusion. Earlier this month, the lawyers filed an application for leave to appeal the Court of Appeal decision to the country’s top court.
“It’s a long time ago that I took constitutional law, but my understanding is there’s federal legislation, and it’s interpreted and applied the same across the country. That’s not happening now,” says Bales.
According to Beall, two partners could end up getting different treatment depending on where they go after the split.
“If my wife and I split up and she moved to Montreal and a year later she filed in Quebec for a divorce, she would have different appeal rights under the legislation than I would if I stayed and filed in Ontario,” he says. “We’re saying to the Supreme Court of Canada that we’d like some help clearing this up.”
But Golnaz Simaei, who with Julie Hannaford represents Carol Ann Elgner, says the Ontario Court of Appeal’s decision considered constitutional issues not contemplated in Saskatchewan, B.C., and Quebec.
“There was not much meat in those decisions, and very little constitutional analysis. The Ontario Court of Appeal did a more fulsome analysis,” she says.
At the centre of the case is s. 21(1) of the Divorce Act, which says, “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.”
But the Ontario Court of Appeal decided the section must be considered in the context of a further s. 21(6), which says an appeal “shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.”
In Ontario, that procedure is set out in the Courts of Justice Act, which requires leave for appeals of interlocutory orders. Appeal Court Justice Eileen Gillese, writing on behalf of the three-judge panel, said compliance with both acts was possible.
“As the two provisions operate harmoniously, the doctrine of paramountcy is not engaged,” she said.
According to Hannaford, the leave requirement does not remove the substantive right to appeal, but reflects the province’s right to govern the process by which appeal rights are asserted.
“It seems to me that if the Supreme Court does not grant leave to appeal, the inference to be drawn is that there are different processes that exist across the country and can co-exist quite happily with one another,” she says. “If the Supreme Court does grant leave, it may be to articulate that provinces do have autonomy to decide their own processes.”
Apart from the constitutional question, Hannaford says it’s important to consider the implications of allowing appeals as of right for interim orders.
“There are hundreds of interim orders made under the Divorce Act every day, because of the number of divorce applications being made. There’s some concern about what occurs in Ontario, which already has a very busy court docket. If the idea is that you can appeal every order directly to the Court of Appeal, you can imagine what it would do to the efficiency of the process,” she says.
But Beall says other provinces have coped without requiring leave to appeal interim orders under the act.
“There’s no evidence that there’s been a huge flood of appeals in B.C., Saskatchewan, or Quebec appealing interim support orders,” he says. “I always think it’s important to get on with things, but Parliament in its wisdom has, from our position, provided appeal rights.”
A trial in the Elgner divorce is currently scheduled for December 2011.