Appeals from the Family Court branch of the Superior Court under the Hague Convention lie to Divisional Court

Christodoulou v. Christodoulou, 2010 ONCA 93, released today, 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 the Court of Appeal for Ontario?

 

The short answer is “Divisional Court”.

 

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”) ....

 

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.

 

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.

 

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

 

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.

 

After considerable analysis the Court holds:

 

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.