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Appeals - Transfers. J.M. v. B.S.
In J.M. v. B.S. (Ont CA, 2024) the Ontario Court of Appeal dismissed a motion to extend time to commence an appeal, in part as the appellant tried to commence the appeal in the wrong court:[5] This motion turns on the merits of the appeal. This court’s jurisdiction is relevant to assessing the merits of the appeal. While a single judge of this court cannot quash an appeal because of lack of jurisdiction, a single judge can consider the court’s jurisdiction when deciding whether to grant an extension: Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 8. An appeal brought in the wrong court “undercuts its merits and the interests of justice in granting the extension”: Collins v. Tiveron, 2024 ONCA 447, 2 R.F.L. (9th) 257, at para. 16. . Janzen v. Cook
In Janzen v. Cook (Ont CA, 2024) the Ontario Court of Appeal grants an appeal court transfer (CA to Divisional), and usefully explains family law trial and appeal routes:[1] This decision addresses the issue of the appropriate jurisdiction for an appeal of a final order made only under the Family Law Act, R.S.O. 1990, c.F. 3 by a Family Court judge in Cayuga, dismissing a motion to change a separation agreement.
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Positions of Parties
[7] Before me, the respondent brings a motion for an order transferring the appeal to the Divisional Court in Hamilton on the basis that the Divisional Court has jurisdiction and this court does not. He relies on ss. 110(1) and 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.
[8] Under s. 110(1) of the Courts of Justice Act, where a proceeding or step in a proceeding is brought before the wrong court, it may be transferred to the right court. Therefore, if the respondent is correct, the appeal may be transferred to the Divisional Court in Hamilton.
[9] Under s. 19(1)(a.1) of the Courts of Justice Act, an appeal lies to the Divisional Court from, “a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.
[10] The appellant responds by submitting that the Court of Appeal has jurisdiction by virtue of s. 19(1.2) of the Courts of Justice Act, which addresses the monetary jurisdiction of the Divisional Court. She asserts that as her claim is for more than $50,000, jurisdiction lies with the Court of Appeal. She also relies on the case of Bahadori v. Samadzadeh, 2009 ONCA 10.
Analysis
[11] In 2020, the Courts of Justice Act was amended to simplify appeal routes in family law matters. The amendments came into force on March 1, 2021.
[12] There are three kinds of courts that preside over family law matters in Ontario at first instance: the Family Court, the Superior Court and the Ontario Court of Justice.
[13] Under s. 21.1(1) of the Courts of Justice Act, the Family Court is a branch of the Superior Court of Justice. It is sometimes referred to as the Unified Family Court. It combines the jurisdiction of the Ontario Court of Justice and the Superior Court of Justice in relation to family law matters and hears all such matters where it exists: Christodoulou v. Christodoulou, 2010 ONCA 93, 258 O.A.C. 193, at para. 33. The Family Court sits in various designated locations across Ontario. One such location is Cayuga, Ontario. Described as the Superior Court of Justice, Family Court, it is clear that the order in issue in this motion was a Family Court order.
[14] In other non-designated areas, the Superior Court of Justice and the Ontario Court of Justice both hear family law matters. Each has distinct and overlapping subject matter jurisdiction.
[15] A final order of the Family Court lies to the Divisional Court if it was made only under provincial legislation. As mentioned, s. 19 (1) of the Courts of Justice Act states that “[a]n appeal lies to the Divisional Court from…(a.1) a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario”.
[16] As the order the appellant seeks to appeal is final, was made by a judge of the Family Court, was made under the provincial Family Law Act and, importantly, only under that Act, her appeal lies to the Divisional Court. Provided these four characteristics are met, her appeal is governed by s. 19(1)(a.1). The quantum of support disputed by the appellant and the respondent’s alleged failure to disclose are irrelevant to the issue of jurisdiction.
[17] The case of Bahadori v. Samadzadeh relied upon by the appellant predates the amendments to the Courts of Justice Act and therefore has no application to the facts of this case. Had the order been made under the Divorce Act, RSC 1985, c. 3 (2nd Supp), by way of example, the appellant’s arguments would have had merit. However, once the four characteristics are met, the Divisional Court has jurisdiction, not the Court of Appeal.
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