“Toronto does not have a Unified Family Court. The result is that the Ontario Court of Justice and Superior Court of Justice have concurrent jurisdiction on originating issues of custody and access under the Children’s Law Reform Act and child and spousal support under the Family Law Act. The Superior Court of Justice has exclusive jurisdiction to make custody, access and support orders under the Divorce Act and to make property-related orders, including orders for exclusive possession of the matrimonial home under the Family Law Act. The Ontario Court of Justice has exclusive jurisdiction to hear originating protection applications under the Child and Family Services Act. This is just the starting point in discussing the various jurisdictional issues between the two courts.
This jurisdictional jigsaw often creates confusion and additional costs for counsel and litigants. It also means that counsel and litigants must give serious consideration to what court they will start their case in.
One of the factors that must be considered by a party before a case is started in the Ontario Court of Justice is that the other party may issue an application for divorce in the Superior Court of Justice seeking similar or additional relief. Under both section 27 of the Children’s Law Reform Act and section 36 of the Family Law Act,the commencement of the divorce application stays any proceeding in the Ontario Court of Justice that has not yet been determined, unless on motion, a judge in the Ontario Court of Justice lifts that stay.
There are often good reasons to start a case in the Superior Court of Justice in the face of proceedings started in the Ontario Court of Justice. There may be issues of property or exclusive possession of the matrimonial home that the Ontario Court of Justice has no jurisdiction to deal with. Issues of support and property may be intertwined. In such cases, it will make sense not to split the case and to have one court decide all of the issues.
The reality is that sometimes the decision to start a case in the Superior Court of Justice case while there is an ongoing case in the Ontario Court of Justice has more to do with tactics. It can be done to frustrate the case in the Ontario Court of Justice when a litigant is unhappy with orders being made against them. It is sometimes done merely to frustrate the other party and cause them additional costs. In such cases, the litigant acting in this manner runs the risk of the judge in the Ontario Court of Justice lifting the automatic stay and continuing the case or ordering costs against them. The longer the case has been going on in the Ontario Court of Justice, the greater the risk to such a litigant. See: Hudson v. Hudson, [2006] O.J. No. 3520 (OCJ), per Justice Robert J. Spence.”
Sambasivan v. Pulendrarajah, 2012 ONCJ 711 (CanLII) at 49-53.