“The Applicant relies on a number of cases in which the Superior Court of Justice has ruled that it does not have jurisdiction to vary a final order made by the OCJ as the subject separation agreement constitutes a final order of that court through the statutory mechanism provided by s. 35 of the FLA, and the OCJ has affirmed its exclusive jurisdiction to vary a s. 35 FLA order: Ridley v. DeRose, 2015 ONSC 5635; Houle v. Trottier, 2012 ONSC 786, rev’d on different grounds, 2012 ONSC 6661 (Divisional Court); Doherty-Mulder v. Mrowietz, (2003), 43 R.F.L. (5th) 313 (Ont. S.C.), 2003 CanLII 5374; Maves v. Whitsitt, 11 R.F.L. (7th) 399, 2011 CarswellOnt 11869 (Ont. S.C.); Sadowski v. Sadowski, 2011 ONCJ 403; Gow v. Gow (1989), 1989 CanLII 4267 (ON SC), 67 O.R. (2d) 443 (H.C.J.); Stafichuk v. Iaboni, 2012 ONCJ 785.
In Maves, the Divisional Court overturned the motion judge’s determination that the Superior Court of Justice lacked jurisdiction to hear an application for corollary relief under the Divorce Act (in the face of a separation agreement that was filed with the OCJ under s. 35 of the FLA) on the basis that the application was not to vary the OCJ order but was a stand-alone independent application. The Divisional Court stated, at paras 10 – 13:
[10] The appellant in this case does have the option of proceeding in the provincial court, seeking a variation in that court’s child support order under s. 37 of the Family Law Act. However, she is not restricted to that one option. She has the alternative option of initiating a corollary relief proceeding under s. 15.1 of the Divorce Act. That request for relief can only be advanced in the Superior Court of Justice.
[11] The hearing judge correctly concluded on the authorities she cites at paragraphs 14 through 18 of her reasons that the Superior Court of Justice has no jurisdiction to vary an order made in the Ontario Court of Justice under the Family Law Act. A request to change the order already granted in the Ontario Court of Justice can only be advanced in that court…..
[12] In a similar vein, it is irrelevant that the Superior Court of Justice has no jurisdiction to vary the terms of the Separation Agreement filed with the Ontario Court of Justice under s. 35 of the Family Law Act. The appellant in this case is not seeking a variation of the separation agreement or a variation of the order for child support under the Family Law Act. She is asserting a claim for corollary relief under the Divorce Act.
[13] An order under the Divorce Act does not vary the order under the provincial legislation. Rather it supplants and supersedes the order under the provincial statute. See Pantry vs Pantry 1986 CanLII 2537 (ON CA), [1986] O.J. No., 2347 (Ont. C.A.) at para. 7. (emphasis added)”