Ontario Court of Appeal calls for reform of family law appeal routes

In a recent costs endorsement, the Court of Appeal for Ontario has again called for reform of the province’s family law appeal routes, as the existing regime is “confusing for the public, counsel, and institutional litigants” (Mattina v. Mattina, 2018 ONCA 867). This is not the first time that the Court of Appeal has made this plea: Justice MacPherson invited legislative reform of the existing appeal routes over eight years ago in Christodoulou v. Christodoulou, 2010 ONCA 93, as did Justice Juriansz six years ago in Marchildon v. Beitz, 2012 ONCA 668. Most recently in Mattina, the Court of Appeal took the arbitrariness of the appeal routes into consideration in its costs award.

Family law appeal routes

The arbitrariness of Ontario’s family law appeal routes was outlined in Christodoulou. The issue turns on the application of section 21.9.1 of the Courts of Justice Act (CJA), which provides that 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.” Where this provision is engaged, it triggers the exception to the Court of Appeal’s jurisdiction in respect of final orders of the Superior Court of Justice found within paragraph 6(1)(b) of the CJA. The appeal route is thus geography-dependent: namely, it depends on whether the first-instance decision was made at a Family Court site. As Justice MacPherson summarized in Christodoulou:

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 [i.e., at a place where there is no Family Court site] 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.

Especially for the public and self-represented litigants, navigating the applicable provisions and determining the appropriate appeal route can be difficult, and it may lead to unnecessary costs.

Renewed call for legislative redress

The Court of Appeal has commented on the arbitrariness of family law appeal routes on numerous occasions, including Christodoulou, Marchildon, and Priest v. Reilly, 2018 ONCA 389. Most recently in Mattina, the appellant had originally launched his appeal in the Divisional Court, even though he ought to have been in the Court of Appeal. However, the Court of Appeal refused to require him to pay the other side’s unnecessary costs associated with the Divisional Court proceeding, finding that it would be unjust to award such costs “[g]iven the legislative deficiency.”

We reproduce the Court of Appeal’s commentary on the Ontario family law appeal routes in full:

[36]      This court has repeatedly commented on the fact that this province’s family law appeal routes are confusing for the public, counsel, and institutional litigants: Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII), 75 R.F.L. (6th) 266; Marchildon v. Beitz, 2012 ONCA 668 (CanLII), 23 R.F.L. (7th) 316; Priest v. Reilly, 2018 ONCA 389 (CanLII). In particular, this court in Christodoulou noted the cost implications of this confusion at para. 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.

[37]      This case illustrates once again the unnecessary costs parties bear as a result of this confusion. We therefore echo this court’s plea in Priest v. Reilly (at para. 6): “It has been over eight years since MacPherson J.A. in Christodoulou specifically invited legislative reform in this area. This is a serious access to justice problem that must be remedied.”

[38]      Given this legislative deficiency, it would be unjust in our view for the father to pay the mother’s costs associated with the appeal before the Divisional Court. The father’s behaviour throughout this case is in our view sufficiently addressed by the costs awards for the remainder of the proceedings.

It remains to be seen how many more times the Court of Appeal will be required to call for legislative reform in this area. In the meantime, the burden of the current regime will fall disproportionately on self-represented litigants.

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