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 of Appeal for Ontario

Date: 2017-01-04 Docket: C62586

Judges: Gillese, Juriansz and Watt JJ.A.

Between

P.M. (Applicant/Appellant)

and

M.A., Catholic Children's Aid Society of Toronto and Office of the Children's Lawyer (Respondents)

Counsel

• Roger Rowe, for the appellant
• Katharina Janczaruk, for the respondent M.A.
• Mei Chen, for the respondent Catholic Children's Aid Society of Toronto
• Tammy Law, for the respondent Office of the Children's Lawyer

Heard and released orally: December 23, 2016

On appeal from: the judgment of Justice Victor Paisley of the Superior Court of Justice, dated July 28, 2016.

Endorsement

[1] This matter arises from litigation over access to children between the father P.M., the mother M.A., the Catholic Children's Aid Society and the Office of the Children's Lawyer. In child protection proceedings, the Society obtained an order in the Ontario Court of Justice varying the father's access, pending trial, from unsupervised to supervised. The father appealed to the Superior Court. That appeal was dismissed after his request for an adjournment was refused. He filed an appeal to this court.

[2] The order of the Ontario Court of Justice was interlocutory in nature. The fact that order was the subject of an appeal does not change its fundamental nature. Both the order of the Ontario Court of Justice and the order of the Superior Court on appeal dealt with interim access pending trial, an interlocutory matter.

[3] The order of the Superior Court is interlocutory, notwithstanding that on its form there was a checkmark beside "final order". Because the order is interlocutory, this court has no jurisdiction to hear an appeal from it.

[4] The appellant asks that we transfer the appeal to the Divisional Court under s. 110(1) of the Courts of Justice Act. We decline to do so as it appears to us that s. 19(4) of the Courts of Justice Act precludes an appeal to the Divisional Court. Rule 39(3) of the Family Law Rules is procedural and does not, and could not, create a right of appeal where none exists.

[5] Furthermore, counsel's argument that this court has inherent jurisdiction or some type of residual jurisdiction to hear the appeal is without merit. There must be a statutory basis for this court to hear an appeal and counsel could not point to any.

[6] Finally, counsel cited cases in which panels of this court have constituted themselves a panel of the Divisional Court and heard a Divisional Court appeal mistakenly filed in this court, with the concurrence of the Chief Justice of the Superior Court. While that stratagem has been used in the past, the experience of the court has led to its practical abandonment. In any event, we would not be disposed to do so as the trial of the child protection application is to take place in January, 2017.

[7] For these reasons, this appeal is quashed for lack of jurisdiction.

E.E. Gillese J.A.

R.G. Juriansz J.A.

David Watt J.A.