COURT OF APPEAL FOR ONTARIO

CITATION: Marchildon v. Beitz, 2012 ONCA 668

DATE: 20121003

DOCKET: M41736 (C55183)

Juriansz J.A. (In Chambers)

BETWEEN

Renee Marchildon

Applicant (Respondent in Appeal)

and

Justin Beitz

Respondent (Appellant)

Martin J. Prost, for the respondent (appellant)

L Paterson Kelly, for the applicant (respondent in appeal)

Heard: September 26, 2012

ENDORSEMENT

[1] At issue on this motion is whether this family law appeal properly lies to the Court of Appeal or to the Divisional Court.

[2] The appellant filed a Notice of Appeal with this court, but now brings this motion for an order transferring the appeal to the Divisional Court. The appeal is from an order of the Family Court of the Superior Court of Justice in Barrie, dated February 16, 2012. The material filed does not contain the order itself, but makes evident that the order was made pursuant to s. 23 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[3] The respondent opposes the motion. The respondent relies on the endorsement of the judge below, dated June 21, 2012, which states that the February order was final and that the proper forum for the appellant’s argument that the order was made without jurisdiction is the Court of Appeal. Counsel for the respondent submits that appeals of interim decisions of the Family Court branch of the Superior Court in Barrie lie to the Divisional Court, and appeals of final orders lie to the Court of Appeal.

[4] The statutory provisions governing appeals in family law proceedings are a source of much confusion. In Christodoulou v. Christodoulou, 2010 ONCA 93, 75 R.F.L. (6th) 266, MacPherson J.A. set out the appropriate interpretation of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), noting the inconsistency and arbitrariness inherent in the current system of family law appeal routes. I echo MacPherson J.A.’s remarks at paras. 35 and 36 in saying that the current appeal routes are both confusing and inequitable. I add my voice to those encouraging legislative reform in this area.

[5] As discussed in Christodoulou, s. 21.9.1 of the CJA together with s. 73 of the CLRA provide that the appeal of an order under Part III of the CLRA, excepting ss. 59 and 60,made at a Family Court branch of the Superior Court lies to the Divisional Court. The order under appeal in this case was made under s. 23 of the CLRA, which lies under Part III of that Act.

[6] These provisions may be read in context. 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 that an order of the Ontario Court of Justice is appealed to the Superior Court:

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 CJA deals with the appeal route for decisions of the Family Court in a circuitous fashion. It deems that some statutory provisions that provide for appeals from the Ontario Court to the Superior Court provide for appeals from the Family Court to the Divisional Court:

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] This section applies to s. 73 of the CLRA. 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. [Emphasis added].

[11] Under the CLRA, all regular child custody orders made under Part III of the CLRA at a Family Court branch location, with the explicit exception of those made under ss. 59 and 60, are appealed under s. 21.9.1 of the CJA. Therefore, an appeal from them lies to the Divisional Court.

[12] The motion is granted. Order to go that the appeal be transferred to the Divisional Court.

“R.G. Juriansz J.A.”