W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 45(8) of the Child and Family Services Act, R.S.O. 1990, C. c.11 shall continue. Section 539 reads:

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.

DATE: 20041215

DOCKET: C42182

COURT OF APPEAL FOR ONTARIO

RE:

D.N., an infant by his Litigation Guardian N.N. and N.N., personally (Appellants) – and – THE CHILDREN’S AID SOCIETY OF THE NIAGARA REGION, J.N., THE ATTORNEY GENERAL FOR ONTARIO and CONSTABLE TRACY McCABE (Respondents)

BEFORE:

CATZMAN, ROSENBERG and LANG JJ.A.

COUNSEL:

Guy Ungaro

for the appellant

Donna Wowk

for the respondent, The Children’s Aid of the Niagara Region

J.N.

In Person

HEARD & RELEASED ORALLY:

December 8, 2004

On appeal from the order of Justice Barry H. Matheson of the Superior Court of Justice dated July 22, 2004.

E N D O R S E M E N T

[1] There are several problems with this appeal. Fundamentally, we agree with the applications judge that it was proper to decline jurisdiction on judicial review given the availability of an effective alternative remedy in the proceedings in the Ontario Court of Justice.

[2] Second, we agree with the respondent that no appeal lies to this court from the refusal to grant leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[3] Finally, the Superior Court will only exercise its parens patriae jurisdiction, whether by way of habeas corpus or otherwise, where there is a gap in the legislative scheme. There is no such gap in this case. This case is not like Winnipeg Child and Family Support Services v. K.(L.W.), 2000 SCC 48, [2000] 2 S.C.R. 519, where the application for prerogative relief was brought immediately upon apprehension. In this case, the application was brought one and a half months after the Ontario Court of Justice had assumed jurisdiction and had made orders in relation to the child. The child was no longer in care because of the apprehension by the police officer; the child was being “detained” in accordance with valid court orders and habeas corpus was not available.

[4] It is implicit in his reasons that the applications judge exercised his discretion not to determine habeas corpus matter. It was open to him to do so given the ongoing proceedings in the Ontario Court of Justice and the availability of appeal remedies. Accordingly, the appeal is dismissed.

[5] The respondent Children’s Aid Society is entitled to its costs of this appeal, which we fix in the amount of $10,000, inclusive of disbursements and G.S.T.

[6] The respondent J.N. appeared in person and had no bills to present for work done by her solicitors in connection with this appeal. We make no order for her costs of the appeal, without prejudice to her right to seek costs from Matheson J. of the proceedings for which her solicitors represented her in such proceedings.

Signed: “M.A. Catzman J.A.”

“Marc Rosenberg J.A.”

“S.E. Lang J.A.”