The relevant facts are these. In 2010, the parties agreed to an order at a judicial case conference dealing with custody, guardianship and access. They agreed that the daughter's primary residence would be with the mother, and they believed that the JCC order was a final order. In 2011, the parties agreed to an order varying the JCC order to allow the mother and child to move to Alberta. In 2013, the father applied to vary the JCC order to give the child's primary residence to him. The parties had not yet been divorced at the time of the application.
The importance of the finality of the JCC order concerns the test that must be met to vary the order. To answer this threshold question, the court was required to determine whether the order had been made under the Divorce Act or the old Family Relations Act, and then whether the order was an interim order or a final order.
Prior to the new Family Law Act coming into force, the question of whether an order about children between married spouses was a Divorce Act order or a Family Relations Act order rarely mattered. Because the two laws talked in about the care of children in a compatible manner, it was commonplace for an order to simply grant custody without being more specific. This issue could sometimes become important, however, if a spouse applied to change the order.
Under s. 20 of the Family Relations Act, the court could vary an order if there had been a change in circumstances since the order was made:
Subject to this Act, if a court has made an order under this Act ... the court may, on application, vary or rescind the order if circumstances have changed since the order was made or last varied.Under s. 16 of the Divorce Act, however, the court may vary an interim order without needing proof of a change in circumstances:
(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.Sections 17(1) and (5) of the Divorce Act concern the varying of final orders, and do require a change in circumstances:
(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).
(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ... a custody order or any provision thereof on application by either or both former spouses or by any other person.
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.Did you catch the reference in s. 17(1), about an application by a "former spouse"? In order to be a former spouse entitled to apply to vary an order the spouse must be divorced, of course, and until the spouse is divorced the requirement of a change under s. 17(5) isn't required.
In other words, if you want to change an order about the care of children, if the order is an interim order under the Divorce Act, you just get to apply and the court will usually consider the question of custody and access anew. If the order is a Family Relations Act order or a final Divorce Act order, you must first prove that there has been an important change in circumstances before the court can hear your application. As a result, the status of the order and the law it was made under were critical to the father's application.
The court resolved the question of the order's status by referring to the recent decision of our Court of Appeal in Yu v. Jordan, and quoting from paragraph 47:
"It is common ground that an order for corollary relief in a divorce action that pleads both the Divorce Act and the [Family Relations Act] cannot be a final order for corollary relief under the Divorce Act absent the granting of an order for divorce. Such an order will remain an interim order under the Divorce Act until the divorce is granted. Final corollary relief under the Divorce Act can be granted only upon the granting of an order for divorce..."In other words, when a claim asks for orders about the children under both the Divorce Act and the provincial legislation, the order will never be a final order until a divorce is granted, regardless of the intention or understanding of the parties to the order. As Mr. Justice Grauer put it, "because no order for divorce has been pronounced, any order under the Divorce Act is perforce an interim order no matter what the parties contemplated or the order states."
My thanks to my colleague Kathryn Robinson for bringing this case to my attention.