



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 childs parent or foster parent or a member of the childs
    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

CITATION: Highland Shores Children's Aid Society v. C.S.D.,
    2017 ONCA 743

DATE: 20170925

DOCKET: C63823

Doherty, LaForme and Miller JJ.A.

BETWEEN

Highland Shores Childrens Aid Society

Applicant (Appellant)

and

C.S.D.

Respondent (Respondent in Appeal)

and

T.M.E.

Respondent (noted in default)

and

C.J.D.

Respondent (noted in default)

Charlotte Murray and David Tobin, for the appellant

Candice Pilgrim, for the respondent C.S.D.

Heard and released orally:  September 21, 2017

On appeal from the order of Justice Tranmer of the Superior
    Court of Justice, dated April 26, 2017, with reasons reported at 2017 ONSC
    2574, allowing the appeal from the order of Justice D.K. Kirkland of the
    Ontario Court of Justice, dated August 12, 2015.

REASONS FOR DECISION

[1]

The appellant (the CAS) moved for summary judgment, declaring A.E. a
    ward of the Crown for the purposes of adoption.  Kirkland J., of the Ontario
    Court of Justice, allowed the motion and declared A.E. a Crown ward.  The
    respondent, A.E.s mother, C.S.D., appealed the order of Kirkland J. to the
    Superior Court of Justice pursuant to s. 69 of the
Child Family Services
    Act
.  Tranmer J. allowed the appeal, set aside the order of Kirkland J.,
    and directed that the matter shall proceed to trial as soon as possible.

[2]

The CAS appealed the order to this court, relying on s. 6(1)(b) of the
Courts
    of Justice Act
, which provides for appeals to this court from a final
    order of a judge of the Superior Court of Justice.

[3]

Shortly before the appeal was to be heard, the Court of Appeal office,
    on the instructions of the court, notified the parties that the court had a
    concern that it may not have jurisdiction to hear the appeal because the order
    of Tranmer J. was an interlocutory, and not a final order.

[4]

At the outset of the hearing, the court asked for submissions on the
    jurisdiction issue.  As it turns out, because of a clerical error by the court,
    counsel for the appellant was unaware of the courts jurisdictional concerns. 
    After hearing submissions, the court adjourned for an hour to allow counsel to
    further consider the matter.  Counsel made brief further submissions.

[5]

This court has repeatedly held that an order of a Superior Court judge
    refusing to grant summary judgment and directing that the matter proceed to
    trial is an interlocutory and not a final order:  see
V.K. Mason
    Construction Ltd. v. Canadian General Insurance Group Limited
(1998), 42
    O.R. (3d) 618;
Ashak v. Her Majesty the Queen in Right of Ontario
(2013),
    115 O.R. (3d) 401, at para. 7.

[6]

We think that jurisprudence applies here.  The purported appeal is from
    the order of the Superior Court judge.  That order directs that the matter
    proceed to trial.  The fact that the order set aside by the Superior Court
    judge was a final order is, in our view, not determinative of the proper
    characterization of the order made by the Superior Court judge.  Tranmer J.s
    order did not decide any issue as between the parties to the Crown wardship
    proceedings.  Rather, it directed that all issues required a trial.  In our
    view, that order was interlocutory.

[7]

The descriptor final that appears on the face of the Tranmer J. order
    does not assist in determining whether the order is final for the purposes of
    appellate jurisdiction.  This court must make its own assessment of the nature
    of the order based on the nature of the order and what the order does or does
    not decide.

[8]

There is no appeal from the order of Tranmer J. to this court.  An
    appeal lies to the Divisional Court only with leave of the Divisional Court: 
    see s. 19(1)(b).  This appeal must be quashed.  Hopefully, the parties will
    move quickly to the next stage of this proceeding.   No costs.

Doherty J.A.

H.S. LaForme J.A.

B.W. Miller J.A.


