Christodoulou v. Christodoulou, 2010 ONCA 93

• Judge: MacPherson, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 15, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 93;(2010), 258 O.A.C. 193 (CA)

Christodoulou v. Christodoulou (2010), 258 O.A.C. 193 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. FE.031

Christina Christodoulou (moving party/respondent in appeal) v. Kyriacos Christodoulou (responding party/appellant in appeal)

(C51199; M38322; 2010 ONCA 93)

Indexed As: Christodoulou v. Christodoulou

Ontario Court of Appeal

MacPherson, J.A.

February 2, 2010.

Summary:

A mother applied to the Family Court branch of the Superior Court of Justice for relief under the Divorce Act, the Family Law Act and the Children's Law Reform Act. The father filed an answer that included an application under the Children's Law Reform Act and the Convention on the Civil Aspects of International Child Abduction (Hague Convention) for the return of their three children to Cyprus. The Family Court dismissed the Hague Convention application. The father appealed to the Court of Appeal. At issue on this jurisdictional motion was whether an appeal from the Family Court involving the Hague Convention was to the Divisional Court or the Court of Appeal.

The Ontario Court of Appeal, per MacPherson, J.A., held that on a straightforward reading of s. 21.9.1 of the Courts of Justice Act together with s. 73 of the Children's Law Reform Act, the first appeal of an order under Part III of the Children's Law Reform Act made at a Family Court was to the Divisional Court. The court transferred the father's appeal to the Divisional Court.

Courts - Topic 7511.1

Provincial courts - Ontario - Divisional Court - Jurisdiction - Appeals from Family Court - A mother applied to the Family Court branch of the Superior Court of Justice for relief under the Divorce Act, the Family Law Act and the Children's Law Reform Act (CLRA) - The father filed an answer that included an application under the CLRA and the Convention on the Civil Aspects of International Child Abduction (Hague Convention) for the return of their three children to Cyprus - The Family Court dismissed the Hague Convention application - The father appealed to the Court of Appeal - At issue on this jurisdictional motion was whether an appeal from the Family Court involving the Hague Convention was to the Divisional Court or the Court of Appeal - Part III of the CLRA, per s. 73, provided that "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 provided that "a statutory provision referred to in the Schedule to section 21.8 or in s. 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 Ontario Court of Appeal, per MacPherson, J.A., held that s. 21.9.1 of the Courts of Justice Act together with s. 73 of the Children's Law Reform Act clearly provided that the first appeal of an order under Part III of the Children's Law Reform Act made at a Family Court was to the Divisional Court - An appeal from the Divisional Court's decision, with leave, was to the Court of Appeal - The court transferred the father's appeal to the Divisional Court.

Family Law - Topic 1977

Custody and access - Child abduction legislation - Appeals (incl. jurisdiction) - [See Courts - Topic 7511.1 ].

Cases Noticed:

De Silva v. Pitts (2007), 232 O.A.C. 180; 47 R.F.L.(6th) 43 (C.A.), refd to. [para. 15].

Ibrahim v. Girgis (2008), 232 O.A.C. 191; 48 R.F.L.(6th) 1 (C.A.), refd to. [para. 15].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 20].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 18(1) [para. 6]; sect. 73 [para. 7].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6(1)(b) [para. 10]; sect. 21.9.1 [para. 8].

Counsel:

Chelsea Hooper, for the moving party;

Phyllis Brodkin and Vanessa Lam, for the responding party;

Katherine Kavassalis, for the Office of the Children's Lawyer.

This motion was heard on January 15, 2010, in Chambers before MacPherson, J.A., of the Ontario Court of Appeal, who released the following judgment on February 2, 2010.