Christodoulou v. Christodoulou, 2010 ONCA 93

Date: 2010-02-02

Docket: (C51199) M38322

Court of Appeal for Ontario

Before: MacPherson J.A. (In Chambers)

Between:

Christina Christodoulou

Moving Party (Respondent in Appeal)

and

Kyriacos Christodoulou

Responding Party (Appellant in Appeal)

Counsel:

Chelsea Hooper, for the moving party

Phyllis Brodkin and Vanessa Lam, for the responding party

Katherine Kavassalis, for the Office of the Children’s Lawyer

Heard: January 15, 2010

MacPherson J.A. (In Chambers):

INTRODUCTION

[1] This motion raises a jurisdictional issue – do appeals from the Family Court branch of the Superior Court of Justice (the “Family Court”) in cases involving the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) properly lie to the Divisional Court or to this court?

BACKGROUND OF THE CASE

[2] Christina Christodoulou (“Christina”) brought an application to the Family Court branch of the Superior Court of Justice in Newmarket claiming relief pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) and the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”).

[3] Kyriacos Christodoulou (“Kyriacos”) filed an Answer that included an application under s. 46 of the CLRA and the Hague Convention seeking the return of the three Christodoulou children to Cyprus.

[4] On October 7, 2009, Gilmore J. of the Family Court in effect dismissed Kyriacos’ Hague Convention application. Kyriacos appealed to this court on November 2, 2009. Christina’s counsel wrote to Kyriacos’ counsel on December 9, 2009, requesting her consent to transfer the appeal to the Divisional Court. Kyriacos’ counsel refused consent the following day.

[5] On December 15, 2009, Christina filed a Notice of Motion, returnable on December 22, 2009, for an order to transfer the appeal to the Divisional Court, but amended the Notice of Motion the following day such that it would be returnable on January 15, 2010.

RELEVANT STATUTORY PROVISIONS

[6] Part III of the CLRA provides for applications to “a court”, which is defined in Part III as follows:

18.(1) In this Part,

“court” means the Ontario Court of Justice, the Family Court or the Superior Court of Justice; (“tribunal”) ....

[7] Part III also provides for an appeal route:

73. An appeal from an order of the Ontario Court of Justice under this Part lies to the Superior Court of Justice.

[8] Section 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) provides:

21.9.1 A statutory provision referred to in the Schedule to section 21.8 or in section 21.12 that provides for appeals from decisions of the Ontario Court of Justice to the Superior Court of Justice shall be deemed to provide for appeals from decisions of the Family Court to the Divisional Court.

[9] The Schedule to s. 21.8 of the CJA lists “Children’s Law Reform Act, except sections 59 and 60”.

[10] Finally, s. 6(1) of the CJA provides:

6.(1) 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.

Parties’ Positions

Christina

[11] Christina submits that appeals of all matters under Part III of the CLRA are covered by s. 73 and trigger the operation of s. 21.9.1 of the CJA. Since s. 73 of the CLRA provides that an appeal from an order of the Ontario Court of Justice under Part III of the CLRA lies to the Superior Court of Justice, and s. 21.9.1 of the CJA specifies that a provision of the CLRA that provides for appeals from decisions of the Ontario Court of Justice to the Superior Court of Justice shall be deemed to provide for appeals from decisions of the Family Court to the Divisional Court, this appeal lies to the Divisional Court. In this way, the s. 6(1)(b) CJA exception to the Court of Appeal’s jurisdiction to hear a final order of a judge of the Superior Court of Justice is triggered.

[12] The Office of the Children’s Lawyer agrees with Christina’s analysis and position.

Kyriacos

[13] Kyriacos first points out that, historically, matters under certain statutes were heard in the Ontario Court of Justice and that the Superior Court of Justice “has no jurisdiction” over these matters. These matters are said to include those under the Child and Family Services Act, R.S.O. 1990, c. C. 11, and the Family Responsibility and Support Arrears Enforcement Act, S.O. 1996, c. 31, all of which can now be brought before the Family Court. Kyriacos submits that s. 21.9.1,

…was enacted in order to deal with the fact that matters previously heard in the Ontario Court of Justice (that were to be appealed to the Superior Court of Justice), such as those referred to above, were now first being heard in the Family Court [and] it would not make sense for an appeal from the Family Court to lie to the Superior Court of Justice, since the Family Court is the same court.

Indeed, “[t]his is the policy behind s. 21.9.1.” As such, s. 21.9.1 “only applies to those situations where a judge in the Family Court was making a decision, as if he or she were sitting in the Ontario Court of Justice.” In support of this argument, Kyriacos submits that the only cases referring to s. 21.9.1 relate to those statutes that mandate proceedings in the Ontario Court of Justice.

[14] Next, Kyriacos points to the way in which the CLRA differs: it provides for applications to the Ontario Court of Justice, Family Court, or Superior Court of Justice. He submits that the other issues involved in this case, namely those governed by the Divorce Act and the FLA, could not have been brought to the Ontario Court of Justice. Kyriacos then makes the following argument:

The trial judge had to be acting as Superior Court judge in a Superior Court of Justice, not as a judge of the Ontario Court of Justice, because the Hague Application was included in an Answer in the divorce Application and could not have been in the Ontario Court of Justice.

If the Respondent was correct, s. 73 would mean that all custody and access orders under Part III of the [CLRA] heard in the Family Court would have to be found to be Ontario Court of Justice orders….

This would contradict the CLRA’s definition of “court” for Part III, which is not restricted to the Ontario Court of Justice.

[15] Further, Kyriacos submits that “[c]ases appealed from the Family Court pursuant to the Convention have always been heard by the Court of Appeal”. He cites two cases for this assertion: DeSilva v. Pitts (2007), 2008 ONCA 9, 47 R.F.L. (6th) 43 and Ibrahim v. Girgis (2008), 2008 ONCA 23, 48 R.F.L. (6th) 1.

Analysis

[16] Christina’s position rests on a clear and straightforward reading of s. 73 of the CLRA and s. 21.9.1 of the CJA. On a plain reading of those two sections of the legislation in their grammatical and ordinary sense, it is clear that an appeal from the order in question lies to the Divisional Court.

[17] Kyriacos, on the other hand, puts forward a number of arguments to avoid the operation of s. 21.9.1 in this case. The first relates to the intention of the legislature and the second to the scheme of the Act and the idea that s. 21.9.1 operates only where a Family Court judge was “making a decision as if he or she were sitting in the Ontario Court of Justice.”

[18] At the oral hearing, counsel for Kyriacos also pointed out that the heading to s. 21.9.1 is “Certain appeals”, suggesting that this supports a limitation on the scope of the section. Lastly, he emphasizes the absurdity of geographical inconsistencies for CLRA Part III appeals.

[19] I will address each argument in turn.

Was the application of s. 21.9.1 to Part III of the CLRA a legislative oversight?

[20] When it comes to statutory interpretation, “there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the objects of the Act, and the intention of Parliament”: Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.

[21] Kyriacos’ foray into legislative intention on this point is not warranted given the wording of the provisions. The wording of s. 21.9.1 is clear in its reference to the Schedule from s. 21.8, in which Part III of the CLRA is included.

[22] There is nothing in the wording of any of the relevant provisions that suggests that Part III of the CLRA should be treated exceptionally. Under the legislation, all regular child custody orders made under Part III of the CLRA at a Family Court location are captured by s. 21.9.1 and are appealed to the Divisional Court.

[23] In addition, Part III of the CLRA is not unique in this regard. Part III of the FLA, which deals with support, is also cited in the Schedule to s. 21.8 of the CJA, and provides for appeals from the Ontario Court of Justice to the Superior Court of Justice. The FLA also defines “court” as the “Ontario Court of Justice, the Family Court of the Superior Court of Justice or the Superior Court of Justice”. This significantly undermines the argument that an exception for Part III of the CLRA was inadvertently overlooked by the legislature. For this argument to succeed, I would have to accept that the legislature failed to turn its mind to all custody and support orders in drafting s. 21.9.1.

[24] I conclude that it is spurious to suggest that the application of s. 21.9.1 to Part III of the CLRA was a legislative oversight.

Was the Family Court Judge “acting as a judge of the Superior Court of Justice” such that s. 21.9.1 Does Not Apply?

[25] On a closely related note, Kyriacos submits that the Family Court judge must have been “acting as a Superior Court judge” when she made the order in question for at least two reasons: 1) there was also a divorce application at stake; and 2) Part III of the CLRA defines “court” as any of the Ontario Court of Justice, the Family Court or the Superior Court such that this is not “an appeal from an order of the Ontario Court of Justice” and s. 73 of the CLRA does not apply.

[26] Kryiacos offers no authority for the notion that a Family Court judge acts as anything other than a Family Court judge when sitting in a Family Court location.

[27] Kyriacos’ suggestion that it was the presence of the Divorce Act and FLA matters that brought the case to the Family Court is also misleading. Section 21.8 of the CJA requires that, even alone, a CLRA Part III application should be brought to the Family Court – where that court exists. This is because the CLRA is specifically listed in the Schedule to s. 21.8.

[28] Lastly, the fact that s. 73 of the CLRA does not apply to this appeal in no way supports the position that the Family Court judge was “acting as a Superior Court Judge”. Section 21.9.1 operates to provide that an appeal from an order of the Family Court lies to the Divisional Court under certain statutes where the specified appeal route is from the Ontario Court of Justice to the Superior Court. It is not s. 73 that directly applies to this case, but s. 21.9.1.

[29] I conclude that the decision of the Family Court Judge should be viewed as a decision of a Family Court Judge, bringing it within the purview of s. 21.9.1.

What Significance, if any, Should the Heading “Certain appeals” Have?

[30] It is a stretch to say that the heading “Certain appeals” limits the section in a way that is inconsistent with the express wording of the provision. That is, Kyriacos urges that despite the reference in s. 21.9.1 to the Acts listed in Schedule 21.8, the heading “Certain appeals” further limits the appeals captured by that section.

[31] Since it would be poor drafting practice to leave the reader to guess at which appeals are covered by a given provision, it is safe to assume that “Certain appeals” refers to those appeals actually delimited by the provision and not to some other entirely undefined class. That is, it is safe to assume that the section is called “Certain appeals” because s. 21.9.1 expressly contains two layers of limits to its application: 1) appeals with respect only to those statutory provisions referred to in s. 21.8’s Schedule or in s. 21.12; and 2) appeals with respect only to those provisions that provide for appeals from the Ontario Court of Justice to the Superior Court of Justice.

What Significance, if any, Should the Arbitrariness of the Geographical Delimitations Have?

[32] It is an unfortunate truth that appeal routes in family law are rife with geographically-based arbitrariness. Hague Convention cases are not special in this regard.

[33] There are three kinds of courts that hear family law matters in Ontario. The Family Court exists in some areas and combines the jurisdiction of the Ontario Court of Justice and Superior Court of Justice in relation to family law. That is, the Family Court hears all family matters where it exists. In other areas, the Ontario Court of Justice and the Superior Court of Justice each hear certain family matters. Only the Superior Court of Justice has jurisdiction to hear divorce applications and matters relating to property division. Only the Ontario Court of Justice has jurisdiction to hear child protection and adoption matters at first instance.

[34] A first appeal from a final custody order of the Family Court will lie to the Divisional Court and a second appeal, with leave, to the Ontario Court of Appeal. The appeal of the exact same order made at the Ontario Court of Justice will lie to the Superior Court and then to the Court of Appeal. If the order is made at the Superior Court of Justice the first appeal will be directly to the Court of Appeal as of right.

[35] The inconsistency in current appeal routes can be confusing for the public, for counsel and for institutional litigants. It can also create an inequality in access to justice between litigants whose disputes at first instance are heard in provincial courts versus superior courts – the former must incur the costs and delays of two appeals in order to reach the Court of Appeal while the latter must incur the cost and delay of only one. The inconsistency may also encourage forum shopping among litigants. In addition, under the current appeal route structure, the allocation of time dedicated to the development of the jurisprudence through judicial decisions is unequal, with a greater focus and opportunity for clarification of the law for cases that have an appeal route directly to the Court of Appeal. For example, given current appeal routes, fewer decisions involving child protection matters that are heard at first instance at the Ontario Court of Justice will receive Court of Appeal consideration because they must first be appealed to the Superior Court of Justice. On the other hand, cases involving the division of property are appealed from the Superior Court of Justice directly to the Court of Appeal, resulting in a higher focus on family law property divisions than on child protection issues at the Court of Appeal.

[36] The arbitrariness of geographical limitations is accordingly a serious concern, but one that extends far beyond the scope of this case. Legislative reform in this area would be welcome. In particular, it seems to me that, given the tremendous importance of custody matters and the desirability of resolving these matters quickly and finally, careful consideration should be given to providing a single direct appeal to the Court of Appeal, no matter which court makes the initial custody decision.

DISPOSITION

[37] On a straightforward reading of s. 21.9.1 of the CJA together with s. 73 of the CLRA, the first appeal of an order under Part III of the CLRA made at a Family Court lies to the Divisional Court. Accordingly, the motion is granted and the appeal is transferred to the Divisional Court.

[38] The moving party is entitled to its costs of the motion fixed at $5000 inclusive of disbursements and GST.

RELEASED: February 2, 2010 (“J.C.M.”)

“J.C. MacPherson J.A.”