Court File and Parties

CITATION: Charlton v. Director, Family Responsibility Office, 2012 ONSC 402

COURT FILE NO.: 1898/11

DATE: 2012-01-16

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Bradley James Charlton, Appellant/Responding Party.

And:

Director, Family Responsibility Office, Respondent on Appeal/Moving Party.

BEFORE: McDermid, J.

COUNSEL: Bradley James Charlton, in person, Appellant/Responding Party.

B. Clark, for the Director, Family Responsibility Office, Respondent on Appeal/Moving Party.

HEARD: January 10, 2012.

ENDORSEMENT

[1] This is a motion brought on behalf of the Director to transfer the appeal launched by Mr. Charlton from the order of Morissette J. dated March 14, 2011, dismissing his motion for a refraining order, from the Divisional Court, where he commenced it, to the Court of Appeal and ancillary relief. It is vigorously opposed by Mr. Charlton.

[2] As I understand this matter, the only issue before Morissette J. on March 14, 2011 was whether or not a refraining order should be granted. She decided it should not. She made no award of money. In my opinion, she made a "final order".

[3] Section 6 (1) of the Courts of Justice Act provides that an appeal lies to the Court of Appeal from …

(b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act.

[4] Section 19(1)(a) provides that 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).

[5] Because the notice of appeal was filed after October 1, 2007, it is subsection 1.2 that applies. It has four subclauses. None of them includes the subject of the appellant's appeal.

[6] No one submitted that an appeal to the Divisional Court lies in this matter "under another Act".

[7] Therefore, in my opinion this appeal is properly heard by the Court of Appeal.

[8] Two examples of cases where the Court of Appeal dealt with appeals from refraining orders are: McLarty v. Ontario (Family Responsibility Office, Director) and Adubofuor v. Ontario (Family Responsibility Office, Director).

[9] These cases confirm my opinion that the appeal is properly heard by the Court of Appeal rather than the Divisional Court.

[10] Section 110 of the Courts of Justice Act provides:

(1) Where any proceeding or a step in a proceeding is brought or taken before the wrong court, judge your officer, it may be transferred or adjourned to the proper court, judge or officer.

(2) A proceeding that is transferred to another court under subsection (1) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court.

[11] Accordingly, I order that this appeal be transferred to the Court of Appeal forthwith. The hearing of this appeal before the Divisional Court at London is vacated.

[12] The temporary order of Hackland, R.S.J., dated November 29, 2011, which reinstates Mr. Charlton's driver's licence pending the hearing of the appeal, shall continue until further order of the court.

[13] Any further motions launched by Mr. Charlton shall be on 10 days written notice to the Family Responsibility Office in London.

[14] Mr. Charlton and counsel for the Director may speak to costs on a date to be fixed by the trial coordinator.

“Mr. Justice D.R. McDermid”

Mr. Justice D. R. McDermid

Date: January 16, 2012.