



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: P.M. v. M.A., 2017 ONCA 6

DATE: 20170104

DOCKET: C62586

Gillese, Juriansz and Watt JJ.A.

BETWEEN

P.M.

Applicant (Appellant)

and

M.A., Catholic Childrens
    Aid Society of Toronto and

Office of the Childrens
    Lawyer

Respondents (Respondents)

Roger Rowe, for the appellant

Katharina Janczaruk, for the respondent M.A.

Mei Chen, for the respondent Catholic Childrens Aid
    Society of Toronto

Tammy Law, for the respondent Office of the Childrens
    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 Childrens Aid Society
    and the Office of the Childrens Lawyer. In child protection proceedings, the
    Society obtained an order in the Ontario Court of Justice varying the fathers
    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, counsels 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"


