





CITATION: Elgner v. Elgner, 2011 ONCA 483



DATE: 20110629


DOCKET: C53108


COURT OF APPEAL FOR ONTARIO


Cronk, Gillese and MacFarland JJ.A.


BETWEEN


Carol Ann Elgner


Applicant (Respondent)


and


Claude Frederick Elgner


Respondent (Appellant)


IN THE MATTER OF an Application under the
Divorce Act
,
          R.S.C. 1985, c. 3 (2nd Supp.)


Charles E. Beall and Karon C. Bales, for the appellant


Julie K. Hannaford, Golnaz S. Simaei, Harold Niman and Vanessa
          Amyot, for the respondent


Daniel Guttman, for the intervener, the Attorney General of
          Ontario


Heard:  April 13, 2011


On appeal from the order of the Divisional Court (Casimir N.
          Herold, John R. R. Jennings and Sidney N. Lederman J.J.), dated September 9,
          2010.


Gillese J.A.:

[1]

An interim spousal support order is made.  Can the order be appealed as
    of right or only with leave?
[2]

This question lies at the heart of this appeal.  Its resolution involves
    a significant constitutional challenge based on the doctrine of federal
    paramountcy.  Conflicting caselaw from across Canada tells us that there is no
    easy answer to it.
OVERVIEW
[3]

Claude Frederick Elgner, the appellant, and Carol Ann Elgner, the
    respondent, separated in June 2007 after thirty-three years of marriage.  Mr.
    Elgner is now 63 years old; Ms. Elgner is 62.  They have three adult children,
    none of whom is a child of the marriage for support purposes.
[4]

On December 2, 2009, pursuant to s. 15.2 of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.), Greer J. ordered Mr. Elgner to pay
interim spousal support of $110,000 per month, and retroactive
    spousal support of $3,360,000 for the period from January 2008 to December 2009
    (the interim order).
[5]

Mr. Elgner wishes to appeal the interim order.  He moved to file a
    notice of appeal as of right or, if leave to appeal is required, that leave be
    granted.  Justice Sachs, sitting as a single judge of the Divisional Court,
    dismissed the motion by order dated March 17, 2010 (the first Divisional Court
    order).
[6]

Mr. Elgner then moved for a review of the first Divisional Court order by
    a full panel of the Divisional Court.  He sought only a review of that part of
    the order dismissing his motion for an order permitting him to file his appeal
    as of right.  He did not seek a review of Sachs J.s refusal to grant leave to
    appeal.
[7]

By order dated September 9, 2010, a panel of the Divisional Court
    dismissed the motion (the order under appeal), holding that leave to appeal the
    interim order was required.  The Divisional Court gave two sets of reasons for
    dismissing the appeal.  Justice Herold wrote reasons with which Lederman J.
    concurred (the majority or the majority decision).  Justice Jennings wrote
    concurring reasons (the minority or the minority decision).
[8]

With leave of this court, Mr. Elgner brings this appeal.  He argues
    that he is entitled to appeal the interim order as of right  that leave to
    appeal is not required.  He bases his appeal on s. 21(1) of the
Divorce Act
,
    which provides that, with two exceptions that do not apply in the present case,
     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.
[9]

Mr. Elgner contends that s. 21(1) of the
Divorce Act
gives the
    right of appeal for all orders, interim and final, made under the
Divorce
    Act
.  As the
Divorce Act
is federal legislation, he says that right is
    paramount over s. 19(1)(b) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C. 43 (the
CJA
), which requires leave to appeal from interlocutory orders
    of judges of the Superior Court of Justice.
[10]

Because the appeal raises a constitutional question and the principle of
    paramountcy, notice was given to both the Attorneys General of Ontario and
    Canada.  Only the Attorney General of Ontario intervened.  It took the position
    that s. 19(1)(b) of the
CJA
is not rendered constitutionally inoperative
    by virtue of s. 21 of the
Divorce Act
and the doctrine of paramountcy. 
    Thus, like Ms. Elgner, the Attorney General of Ontario submitted that leave to
    appeal is required and the appeal should be dismissed.
[11]

As I explain below, I agree with the majority
    decision of the Divisional Court.  Accordingly, I would dismiss the appeal.
THE DECISIONS BELOW


The First Divisional
    Court Order
[12]

Based on the decision in
Kral v. Kral
(1994), 68 O.A.C. 188 (Div. Ct.), Sachs J., sitting as a single judge of the
    Divisional Court, held that Mr. Elgner required leave to appeal the interim
    order
.
[13]

In
Kral
, the Divisional Court observed that
    s. 21(6) of the
Divorce Act
provides that appeals are to be asserted in
    accordance with the ordinary procedure governing appeals.  Section 21(6) of the
Divorce Act
reads as follows:
Except as otherwise provided by
    this Act or the rules or regulations, an appeal under this section 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.
[14]

Thus, the Divisional Court reasoned in
Kral
,
    s. 21(6) of the
Divorce Act
authorizes the requirement for leave set out
    in s. 19(1)(b) of the
CJA
.  Consequently, there is no conflict between
    the two provisions.
[15]

Justice Sachs considered
Kral
to be
    binding upon her.  She noted that in deciding
Kral
, the Divisional Court
    relied on the statement of Finlayson J.A. in
Colletta v. Colletta
(1992),
    10 O.R. (3d) 464 (C.A.), at para. 5, that leave to appeal is required in
    respect of interim orders under the
Divorce Act
.  She further noted that
    in
Kral
, the Divisional Court adopted the reasoning of Carruthers J.,
    sitting as a single judge, in
Potts v. Potts
(1993), 13 O.R. (3d) 284
    (Div. Ct.), to the same effect.  Justice Sachs concluded by observing that the
    ruling in
Kral
furthers the legitimate policy objective of discouraging
    appeals from interim orders in family law matters, which cause additional
    expense, emotional anguish and delay to the parties.
[16]

Justice Sachs refused to grant leave to appeal
    the interim order because the proposed appeal raises no issues that transcend
    the private interests of the parties or questions of law requiring resolution
    by a higher judicial authority.  Any issues that are raised require resolution
    by the trial judge, who will have a full opportunity to assess the parties
    credibility and the evidence.

The Order under Appeal
[17]

The Divisional Court gave two sets of reasons for dismissing the appeal. 
    It is instructive to consider both.

The Majority Decision
[18]

The majority endorsed the reasons of Sachs J.  They stated that ss.
    21(1) and (6) of the
Divorce Act
must be read together.  In light of the
    conflicting interpretations that these provisions have been given, they viewed them
    to be ambiguous.  Consequently, they stated that policy considerations  as
    well as context  could inform their interpretation.  The majority quoted with
    approval the policy considerations that Sach J. identified and which are set
    out at para. 15 above.
[19]

The majority went on to note the anomalous situation that would result
    if a judge dealt with a motion for interim support under the
Divorce Act
and
    for interim exclusive possession under the
Family Law Act
, R.S.O. 1990,
    c. F.3.  If Mr. Elgners position is correct, leave would not be required to
    appeal the interim support part of any order that was made but it would be
    required for the interim order in respect of possession of the matrimonial
    home.
[20]

The majority opined that s. 21 must be interpreted within the context of
    the gatekeeper function played by the courts, which is becoming more
    necessary and acceptable in our judicial system, in order to prevent the
    situation where the person with the deepest pockets or the inclination and
    ability to argue motions and appeals can wear down his or her opponent.
[21]

When read in context, the majority concluded that s. 19(1) of the
CJA
is not inconsistent with s. 21 of the
Divorce Act
.  Section 19(1) does
    not take away a substantive right to appeal  it merely sets out the procedure
    for asserting and enforcing that right.
[22]

The majority acknowledged the Supreme Court of Canadas decision in
Kelvin
    Energy v. Lee
, [1992] 3 S.C.R. 235 (
Kelvin Energy
), which held that wording
    similar to that in s. 21(1) of the
Divorce Act
gave an absolute right of
    appeal from an order made under the
Canada Business Corporations Act
,
    R.S.C. 1985, c. C-44 (
CBCA)
.  However, it did not find
Kelvin Energy
to be significant because there is no comparable section in the
CBCA
to
    s. 21(6) of the
Divorce Act
.

The Minority Decision
[23]

The minority would have dismissed the appeal solely on the ground that
    the panel was bound by
Kral
.  However, he expressed serious reservations
    about the correctness of
Kral
.  He analysed Ontario lower court
    decisions and decisions of the Saskatchewan, British Columbia, and Quebec
    courts of appeal, all of which have held that leave is not required to appeal
    interim orders made under the
Divorce Act
.  He concluded that the weight
    of judicial authority on the interpretation of s. 21 is contrary to the
    conclusion reached in
Potts
.  In his view, these contrary authorities
    are consistent with the plain language of s. 21(1).
[24]

The minority also differed from the majority in finding it incompatible
    for legislation to grant an absolute right of appeal but require that leave be
    granted.  He observed, at para. 40 of the reasons, that a right to apply for a
    right to appeal is not a right of appeal as provided in s. 21.
[25]

Finally, the minority expressed reservations about whether admittedly sound
    policy considerations should affect the courts interpretation of s. 21, saying
    that if Parliament has granted an absolute right of appeal, courts cannot do
    other than permit that right to be exercised.
THE ISSUE AND STANDARD OF REVIEW
[26]

There is a single issue to be decided on this
    appeal:  can an interim order made under the
Divorce Act
be appealed as
    of right or only with leave?
[27]

The parties agree that because the court is
    reviewing a decision on a question of law, the applicable standard of review is
    correctness.
THE RELEVANT STATUTORY PROVISIONS
[28]

The relevant parts of s. 21 of the
Divorce Act
read
    as follows:
21. (1) Subject to subsections (2) and (3), 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.
(2) No appeal lies from a judgment granting a
    divorce on or after the day on which the divorce takes effect.
(3) No appeal lies from an order made under this
    Act more than thirty days after the day on which the order was made.
...
(6) Except as otherwise provided by this Act or the
    rules or regulations, an appeal under this section 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.
[29]

Section 25 of the
Divorce Act
reads as follows:
25.  (1)  In this section, competent authority,
    in respect of a court, or appellate court, in a province means the body, person
    or group of persons ordinarily competent under the laws of that province to
    make rules regulating the practice and procedure of that court.
(2)  Subject to subsection (3), the competent
    authority may make rules applicable to any proceedings under this Act in a
    court, or appellate court, in a province, including, without limiting the
    generality of the foregoing, rules
(a) regulating the practice and
    procedure in the court,  including the addition of persons as parties to the proceedings;
(b) respecting the conduct and
    disposition of any proceedings under this Act without an oral hearing;
(b.1) respecting the application of
    section 17.1 in respect of proceedings for a variation order;
(c) regulating the sittings of the
    court;
(d) respecting the fixing and awarding
    of costs;
(e) prescribing and regulating the
    duties of officers of this court;
(f) respecting the transfer of
    proceedings under this  Act to or from the court; and
(g) prescribing and regulating any
    other matter considered expedient to attain the ends of justice and carry
    into effect the purposes and provisions of this Act.
(3)  The power to make rules for a court or
    appellate court conferred by subsection (2) on a competent authority shall be
    exercised in the like manner and subject to the like terms and conditions, if
    any, as the power to make rules for that court conferred on that authority by
    the laws of the province.
(4)  Rules made pursuant to this section by a
    competent authority that is not a judicial or quasi-judicial body shall be
    deemed not to be statutory instruments within the meaning and for the purposes
    of the
Statutory Instruments Act
.
[30]

Section 19(1) of the
Courts of Justice Act
reads as follows:
19.  (1) An appeal lies to the Divisional Court
    from,
(a) a final order of a judge of the
    Superior Court of Justice, as described in subsections (1.1) and (1.2);
(b) an interlocutory order of a judge
    of the Superior Court of Justice, with leave as provided in the rules of court;
(c) a final order of a master or case
    management master.
ANALYSIS
[31]

Mr. Elgner contends that s. 21(1) of the
Divorce
    Act
provides a direct right of appeal of all orders, interim and final,
    made under the
Divorce Act
.  Consequently, he argues, s. 19(1)(b) of the
CJA
conflicts with s. 21(1) because it stipulates that an appeal from an
    interlocutory order of a Superior Court judge lies to the Divisional Court only
    with leave.  Mr. Elgner argues that a provincial law cannot derogate from the
    right of appeal specifically created by a federal statute.  Therefore, because
    the
Divorce Act
is federal legislation, he says that the doctrine of
    paramountcy applies to render s. 19(1)(b) of the
CJA
inoperative to the
    extent of the conflict.  He also argues that the Divisional Court erred in
    relying on policy considerations to interpret appeal rights created by s. 21(1)
    of the
Divorce Act
, given that the language of s. 21(1) is clear and
    unambiguous.
[32]

Mr. Elgner founds his submission on: (1) the
    wording of s. 21(1) of the
Divorce Act
; (2) the reasoning in
Kelvin
    Energy
; and, (3) decisions of the courts of appeal for British Columbia,
    Saskatchewan and Quebec rendered since
Kelvin Energy
, all of which have
    held that pursuant to the
Divorce Act
, leave is not required to appeal
    interim orders made under that Act, notwithstanding any leave requirement under
    the provincial rules of court.  The decisions he relies on are
G.M. v. F.L.
[2009] QCCA 649;
Farden v. Farden
(1996), 141 Sask. R. 178 (C.A.);
Rimmer
    v. Adshead
(2003), 224 D.L.R. (4th) 372 (Sask. C.A.);
Huculak v. Huculak
,
    1999 BCCA 715;
De Fehr v. De Fehr
, (2002) BCCA 577.
[33]

I do not accept this submission.  In my view,
    the Divisional Court correctly held that by virtue of s. 21(6) of the
Divorce
    Act
, an appeal from an interlocutory order made under the
Divorce Act
is
    subject to the leave requirement in s. 19(1) of the
CJA
.  To conclude
    that s. 21(1) creates a direct right of appeal, without leave, is to ignore ss.
    21(6) and 25 of the
Divorce Act
, and the constitutional analysis that
    must be undertaken before applying the doctrine of paramountcy.

Sections 21 and 25 of
    the Divorce Act
[34]

Each province has enacted procedures for how
    appeals are ordinarily asserted.  In Ontario, s. 19(1)(b) of the
CJA
stipulates
    that an appeal lies to the Divisional Court from an interlocutory order of the
    Superior Court in Ontario with leave.  This was the ordinary procedure for
    asserting an appeal from an interlocutory order when, in 1985, Parliament
    enacted s. 21(6) of the
Divorce Act
.
[35]

Section 21(1) of the
Divorce Act
does not
    stand in isolation.  It must be read in context.  That context includes s. 21(6),
    which provides that:
Except as otherwise provided by
    this Act or the rules and regulations,
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. [emphasis added]
[36]

In my view, on a plain reading of s. 21(6), it stipulates
    that the appeal right given in s. 21(1) must be asserted in accordance with the
    ordinary procedure governing appeals in Ontario.  That ordinary procedure is
    provided by s. 19(1) of the
CJA
, with its leave requirement.
[37]

This is the conclusion that Finlayson J., for a
    unanimous panel of this court, reached in
Colletta
and which I would
    re-affirm.  Counsel in
Colletta
were agreed that an appeal respecting
    interim relief in divorce matters would be to the Divisional Court, with leave. 
    However, Finlayson J.A. did not simply accept this concession.  At para. 5 of
Colletta
,
    he discusses ss. 21(1) and (6), albeit briefly, to explain why he is satisfied
    that counsel were correct on the point.
[38]

Mr. Elgner makes two arguments against this
    interpretation of s. 21(6).  First, he says that it reads out the words except
    as otherwise provided by this Act in s. 21(6).  He submits that the
Divorce
    Act
otherwise provides for an unrestricted right of appeal under s.
    21(1).  Therefore, the incorporation of provincial procedure by s. 21(6) is
    subject to the appeal right granted by s. 21(1).  Second, relying on
792266
    Ontario Ltd. v. Monarch Trust Co. (Liquidator of)
(1996), 94 O.A.C. 384 (C.A.),
    he argues that a right of appeal is a substantive right, not a matter of procedure. 
    Therefore, the word procedure in s. 21(6) does not refer to, or have the
    effect of, incorporating into the
Divorce Act
the provincial rules
    governing leave to appeal.
[39]

In my view, the first argument is circular. 
    Section 21(1) does not otherwise provide for the way in which an appeal shall
    be asserted.  Section 21(1) sets out the appeal right and s. 21(6) sets out
    how, among other things, that right is to be asserted.
[40]

As for the second argument, while I agree that a
    right of appeal is a substantive right and not a mere procedural right, nothing
    turns on this point.  A leave to appeal requirement for interim orders in
    divorce matters does not finally determine the rights of the parties. Interim
    orders are designed to be made quickly to meet the immediate needs of the
    claimant and allow the matter to proceed to trial.  Any adjustments that must
    be made to interim orders can be done at the trial.
[41]

Moreover, by spelling out in s. 21(6) that an
    appeal under s. 21(1) is to be asserted, heard and decided according to the
    ordinary procedure governing appeals, Parliament dictated that the provincial rules
    are to be followed when exercising the appeal right given by s. 21(1).  As has
    been noted, s. 19(1) of the
CJA
was operative when s. 21(6) of the
Divorce
    Act
was enacted.  It was the ordinary procedure in Ontario for asserting
    an appeal from an interlocutory order.  It can be assumed that Parliament, when
    enacting s. 21(6), was aware of the ordinary procedure in place in Ontario.  It
    follows that Parliament could have inserted a provision that excluded the leave
    requirement.  It did not.  Instead, it chose to cede to the provinces the right
    to govern the procedure on appeal.
[42]

Section 25 of the
Divorce Act
reinforces
    this point.  It provides that the provinces may make rules applicable to any
    proceedings under this Act in a court, or appellate court.  The power given to
    the provinces in s. 25 expressly includes regulating practice and procedure
    (s. 25(2)(a)) as well as regulating any other matter considered expedient to
    attain the ends of justice and carry into effect the purposes and provisions of
    this Act (s. 25(2)(g)).
[43]

It is trite law that the modern approach to
    statutory interpretation requires the court to read the words of a provision in
    their entire context and in their grammatical and ordinary sense, harmoniously
    with the scheme of the Act, the object of the Act, and the intention of
    Parliament: see
Bell ExpressVu Ltd. Partnership v. Rex
, [2002] 2 S.C.R.
    559, at para. 26.  Thus, having considered the words of s. 21(1), in context,
    it is necessary to consider also the object of the
Divorce Act
and the
    intention of Parliament.

[44]

The amendments that led to the 1985
Divorce
    Act
were based on the Law Reform Commission of Canadas Report on Family
    Law,
[1]
which recommended a
    fundamental rethinking of the divorce process through the introduction of a
    no-fault divorce regime.  At p. 33, the Report recommended that the
Divorce
    Act
create an expeditious process that would avoid delay and enforce limits
    to prevent unreasonable delay.  It is evident that the object of the reforms underlying
    the 1985 amendments was to simplify divorce proceedings, thereby rendering the
    divorce process less expensive and more timely.  Interpreting ss. 21(1) and (6)
    as the Divisional Court did is consonant with Parliaments intention and the
    object of the amendments to the
Divorce Act
, which were designed to
    shorten and simplify the divorce process.
[45]

Recognition of the object of the amendments also
    does away with Mr. Elgners submission that the Divisional Court erred by
    relying on policy considerations.  It will be recalled that those policy
    considerations, voiced by Sachs J. and endorsed by the majority, were to
    discourage appeals from interim orders in family law matters because they would
    cause the parties additional expense, emotional anguish and delay.  Although
    referred to as a matter of policy, the Divisional Court was simply taking into
    consideration the object of the amendments to the 1985
Divorce Act
.  In
    light of the modern approach to statutory interpretation, set out above, it was
    entirely appropriate for the courts below to take into account this consideration.

The Constitutional
    Issue
[46]

The doctrine of federal legislative paramountcy
    provides that where there is an incompatibility between validly enacted but
    overlapping provincial and federal legislation, the provincial legislation is
    inoperative to the extent of the inconsistency:  see
Canadian Western Bank
    v. Alberta
, [2007] 2 S.C.R. 3, at para. 69.
[47]

Jurisdiction over marriage and divorce is
    federal but, pursuant to the double aspect doctrine, provincial legislatures
    can adopt valid legislation on the same subject, depending on the aspect from
    which the legislation is considered.  No one disputes that s. 19 of the
CJA
is
    validly enacted legislation.
[48]

In applying the doctrine of paramountcy, a
    conflict will not be found merely because of overlap in the subject matter of
    federal and provincial laws.  The question is whether it is impossible to
    comply simultaneously with both laws or whether the operation of the provincial
    law will frustrate the purpose of the federal law:
Canadian Western Bank
,
    at para. 73.
[49]

As I have explained above, compliance with both
    s. 21 of the
Divorce Act
and s. 19(1) of the
CJA
is possible.  A
    party may comply with both by applying for leave to appeal pursuant to s.
    19(1)(b) of the
CJA
.  Furthermore, again for the reasons given above, s.
    19(1) does not frustrate the federal purpose behind s. 21 of the
Divorce Act
. 
    As the two provisions operate harmoniously, the doctrine of paramountcy is not
    engaged.

Two Final Arguments
[50]

It remains to deal with two other arguments
    advanced by Mr. Elgner, the first based on
Kelvin Energy
and the second
    based on appellate decisions from outside Ontario.
[51]

Mr. Elgner put much emphasis on the Supreme
    Courts decision in
Kelvin Energy
.  However, like the majority in the
    Divisional Court, I find that decision to be of little assistance.
[52]

In
Kelvin Energy
, the Supreme Court of
    Canada interpreted s. 249 of the
CBCA
, which at that time provided that
    [a]n appeal lies to the court of appeal from any order made by a court under
    this Act.  It held that under that section, any judgment  whether
    interlocutory or final  was appealable as of right, provided it was made
    pursuant to a power expressly conferred by the
CBCA
.
[53]

However, there is an extremely significant
    distinction between the appeal right under consideration in
Kelvin Energy
and
    that under consideration in the current appeal.  There was no comparable
    provision in the
CBCA
to s. 21(6) in the
Divorce Act
.  As I have
    explained, it is the interplay between ss. 21(1) and (6) of the
Divorce Act
,
    considered within the context of the purpose of the provision and the underlying
    philosophy of the Act, that leads to the conclusion that in Ontario, the appeal
    of interlocutory orders under the
Divorce Act
requires leave to appeal
    from the Divisional Court.
[54]

In relation to the appellate decisions from
    elsewhere in Canada that Mr. Elgner relies on, again I find them to be of
    limited value.  Their analysis does not appear to have taken into consideration
    the relationship among ss. 21(1), (6) and 25 of the
Divorce Act
. 
    Furthermore, I do not read them as having undertaken a constitutional analysis,
    including a consideration of the jurisprudence on paramountcy, which is
    foundational to a determination of conflict.

Conclusion
[55]

In conclusion, when ss. 21(1) and (6) of the
Divorce
    Act
are given their ordinary meaning and read in their entire context,
    harmoniously with the scheme of the Act, the object of the Act and the
    intention of Parliament, it is clear that the right of appeal given by s. 21(1)
    is to be exercised in accordance with the ordinary procedures governing appeals
    of that nature.  In Ontario, the ordinary procedure requires leave, if the
    matter to be appealed is an interlocutory order of a judge of the Superior
    Court of Justice.
DISPOSITION
[56]

Accordingly, I would dismiss the appeal with
    costs to the respondent in the agreed on sum of $30,000, all inclusive.
RELEASED:  JUN 29 2011 (E.E.G.)
E.E. Gillese
    J.A.
I agree. E.A. Cronk J.A.
I agree. MacFarland J.A.

[1]
Law Reform Commission of Canada,
Report on Family Law
, (Ottawa:
    Information Canada, 1976).
