I would like some help determining the facts and issues of the case below. This is for a case brief. I have 4 different briefs and need help with a couple of them. Thank you.

1 This matter raises an issue that arises with some regularity in the Small Claims Court, namely whether this court has jurisdiction to decide a family law matter. In this case I have determined that the court has no jurisdiction and the action is accordingly dismissed. My reasons follow. 2 The Plaintiff's Claim was issued on July 3, 2008 and claims damages of approximately $8,675 plus court costs. The plaintiff alleges that the parties were married and separated, although neither date is pleaded. It is alleged that their house was sold on December 1, 2006 "due to separation of marriage [sic]." 3 The plaintiff goes on to allege various debts and expenses and essentially asks for judgment against Mr. McCrone for half of the debt figures she pleads, all of which seem to have arisen after the house was sold. The claim fails to disclose any cause of action based on contract, restitution, or otherwise. The plaintiff simply requests half of the debt she alleges, presumably because that is what she views as fair. I make no comment on whether her request is fair or factually or legally valid. I am dealing solely with the question of jurisdiction. 4 In comments prepared for the 2008 Caswell Education Seminars presented by the Deputy Judges Council, Mr. Justice J.D. Carnwath of the Superior Court of Justice addressed the question of "Small Claims Court Jurisdiction in Family Law Matters". He concluded based on sections of the Courts of Justice Act, R.S.O. 1990, c. C.43, dealing Page 2 of 3 McCrone v. McCrone, [2008] O.J. No. 3127 with the jurisdiction of the Family Court branch of the Superior Court of Justice (namely sections 21.1, 21.2 and 21.8), that in those places in Ontario where the Family Court sits, "there are no circumstances under which a Small Claims Court Deputy Judge would have jurisdiction to deal with a matter involving family law". 5 Here in the Regional Municipality of Waterloo, the Family Court branch does not operate and so family court matters dealt with in the Superior Court of Justice are heard by superior court judges not sitting as the Family Court branch. As to this situation, Justice Carnwath stated that: The more interesting question is whether in those areas where the Family Branch does not govern, the Small Claims Court may take jurisdiction in particular situations. 6 My view of the legislation affecting this question is perhaps most significantly influenced by rule 1(2) of the Family Law Rules, O.Reg. 114/99. Those are the rules which govern family law proceedings in the Superior Court of Justice. Subrule 1(2)(a)(v) states: Cases and Courts to Which Rules Apply (2) These rules apply to all family law cases in the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice, (a) under, (v) the Family Law Act, except Part V, 7 Part V of the Family Law Act, R.S.O. 1990, c. F.3, deals with derivative claims by relatives of tort claimants and does not apply here. Other parts of that Act deal with family property, matrimonial homes, support obligations and domestic contracts. Of course, divorce is a federal not a provincial jurisdiction and must be dealt with in the Superior Court of Justice and not in the Small Claims Court. 8 In this case, it appears to me that the substance of the plaintiff's claim is for a family law remedy to a family law dispute. Her claim could be characterized as one for support, for division of family property, or as incidental to the sale of the matrimonial home. In my view it is clear that no common law cause of action is pleaded and any applicable remedies lie under the Family Law Act (outside of Part V). 9 These parties presumably will need a divorce and such proceedings might have been brought previously, might be ongoing, or might proceed in the future. There may or may not be a domestic contract and there may or may not be child custody or access or support issues or other spousal support issues. All such issues are clearly caught by various sub-clauses of rule 1(2) of the Family Law Rules. 10 One of the very common difficulties in family law proceedings involving self-represented parties is that the parties may have missed important aspects of what needs to be addressed by the court. As a general proposition, it is my view that families are likely to be better-served by the judges of the Superior Court of Justice having much greater relevant experience and applying the more specialized Family Law Rules including the process for early case conferences, than by the monetarily-limited jurisdiction and summary process of the Small Claims Court. 11 There is a danger in family law cases proceeding to judgment in the Small Claims Court, that parties may through error or ignorance cause substantial prejudice through the doctrines of res judicata, abuse of process and/or collateral attack. In other words, a Small Claims Court judgment could foreclose related or other issues being addressed later on in a family court. Most self-represented litigants will not appreciate that danger. 12 There is also the concern for multiplicity or fragmentation of proceedings which Courts of Justice Act s. 138 states must be avoided as far as possible. In this case, it seems preferable that any property issue should be dealt with along with any other issues between the parties including divorce. 13 In this case, I find that the plaintiff is in the wrong court and that this court has no jurisdiction over the matter. I Page 3 of 3 McCrone v. McCrone, [2008] O.J. No. 3127 do not wish to be misunderstood as suggesting that this court can never hear any case involving any issue that could be characterized in one way or another as a family law issue. I do not purport to answer in the negative Justice Carnwath's question whether this court could hear some family law issues in some "particular situations". But in this particular situation I find the answer to be clear. 14 My conclusion is fortified by the decision of Justice P. Thomson in St. Germain v. St. Germain, [2003] O.J. No. 1118 (Sm. Cl. Ct.), where the plaintiff sued her husband for reimbursement of bills she paid on his behalf. Justice Thomson stated (at para. 2-3): [2] The issues raised are clearly only a portion of the matrimonial problems yet to be addressed by the parties. The Plaintiff cannot avoid the provisions of the Family Law Act or the Divorce Act by refraining from applying for divorce or for other remedies. [3] To allow the Claim to proceed would be tantamount to allowing this Court to be the arbiter in a matter that is clearly within the jurisdiction of a Family Court ... This is an indirect attempt to get some sort of lump sum support. 15 I would respectfully add that parties cannot avoid the provisions of the Family Law Rules by purporting to sue in the Small Claims Court. If those rules had contemplated some jurisdiction in this court over family law matters otherwise within our monetary jurisdiction, the drafters could easily have said so. Unlike the jurisdiction of this court, which is defined not by subject-matter but by monetary limit, the application of the Family Law Rules is by subjectmatter regardless of the amounts involved. In my view where, as here, those rules apply, they displace the jurisdiction of this court. 16 This matter came before me as an assessment of damages after the plaintiff served the defendant personally and noted default against him at an early opportunity. Had there been no question of jurisdiction, I would have decided the matter based on the current pleading, which in my view fails to disclose a reasonable cause of action, pursuant to the approach stated in 627220 Ontario Inc. v. Waterloo North Hydro Inc., [2007] O.J. No. 4109 (Sm. Cl. Ct.). However the court's lack of jurisdiction cannot be ignored merely by reason of the defendant's absence. 17 The plaintiff's claim is dismissed for want of jurisdiction. Because this is not an adjudication of the merits of the plaintiff's allegations, she is at liberty to pursue the matter by way of an application under the Family Law Rules