WARNING

THIS IS AN APPEAL UNDER THE CHILD AND FAMILY SERVICES ACT AND IS SUBJECT TO S. 45 OF THE ACT WHICH PROVIDES:

45(7) The court may make an order,

(a) excluding a particular media representative from all or part of a hearing;

(b) excluding all media representatives from all or a part of a hearing; or

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

Court Information

Court of Appeal for Ontario

Date: 2017-09-25

Docket: C63823

Judges: Doherty, LaForme and Miller JJ.A.

Parties

Between

Highland Shores Children's Aid Society Applicant (Appellant)

and

C.S.D. Respondent (Respondent in Appeal)

and

T.M.E. Respondent (noted in default)

and

C.J.D. Respondent (noted in default)

Counsel

Charlotte Murray and David Tobin, for the appellant

Candice Pilgrim, for the respondent C.S.D.

Hearing and Release

Heard and released orally: September 21, 2017

On appeal from: the order of Justice Tranmer of the Superior Court of Justice, dated April 26, 2017, with reasons reported at 2017 ONSC 2574, allowing the appeal from the order of Justice D.K. Kirkland of the Ontario Court of Justice, dated August 12, 2015.

Reasons for Decision

[1] The appellant (the "CAS") moved for summary judgment, declaring A.E. a ward of the Crown for the purposes of adoption. Kirkland J., of the Ontario Court of Justice, allowed the motion and declared A.E. a Crown ward. The respondent, A.E.'s mother, C.S.D., appealed the order of Kirkland J. to the Superior Court of Justice pursuant to s. 69 of the Child and Family Services Act. Tranmer J. allowed the appeal, set aside the order of Kirkland J., and directed that "the matter shall proceed to trial as soon as possible."

[2] The CAS appealed the order to this court, relying on s. 6(1)(b) of the Courts of Justice Act, which provides for appeals to this court from "a final order of a judge of the Superior Court of Justice".

[3] Shortly before the appeal was to be heard, the Court of Appeal office, on the instructions of the court, notified the parties that the court had a concern that it may not have jurisdiction to hear the appeal because the order of Tranmer J. was an interlocutory, and not a final order.

[4] At the outset of the hearing, the court asked for submissions on the jurisdiction issue. As it turns out, because of a clerical error by the court, counsel for the appellant was unaware of the court's jurisdictional concerns. After hearing submissions, the court adjourned for an hour to allow counsel to further consider the matter. Counsel made brief further submissions.

[5] This court has repeatedly held that an order of a Superior Court judge refusing to grant summary judgment and directing that the matter proceed to trial is an interlocutory and not a final order: see V.K. Mason Construction Ltd. v. Canadian General Insurance Group Limited, 42 O.R. (3d) 618; Ashak v. Her Majesty the Queen in Right of Ontario, 2013 ONCA 375, 115 O.R. (3d) 401, at para. 7.

[6] We think that jurisprudence applies here. The purported appeal is from the order of the Superior Court judge. That order directs that the matter proceed to trial. The fact that the order set aside by the Superior Court judge was a final order is, in our view, not determinative of the proper characterization of the order made by the Superior Court judge. Tranmer J.'s order did not decide any issue as between the parties to the Crown wardship proceedings. Rather, it directed that all issues required a trial. In our view, that order was interlocutory.

[7] The descriptor "final" that appears on the face of the Tranmer J. order does not assist in determining whether the order is final for the purposes of appellate jurisdiction. This court must make its own assessment of the nature of the order based on the nature of the order and what the order does or does not decide.

[8] There is no appeal from the order of Tranmer J. to this court. An appeal lies to the Divisional Court only with leave of the Divisional Court: see s. 19(1)(b). This appeal must be quashed. Hopefully, the parties will move quickly to the next stage of this proceeding. No costs.

Doherty J.A.

H.S. LaForme J.A.

B.W. Miller J.A.