“The statutory provisions governing appeals in family law proceedings are a source of much confusion. In Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII), 75 R.F.L. (6th) 266, MacPherson J.A. set out the appropriate interpretation of s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), noting the inconsistency and arbitrariness inherent in the current system of family law appeal routes. I echo MacPherson J.A.’s remarks at paras. 35 and 36 in saying that the current appeal routes are both confusing and inequitable. I add my voice to those encouraging legislative reform in this area.
As discussed in Christodoulou, s. 21.9.1 of the CJA together with s. 73 of the CLRA provide that the appeal of an order under Part III of the CLRA, excepting ss. 59 and 60, made at a Family Court branch of the Superior Court lies to the Divisional Court. The order under appeal in this case was made under s. 23 of the CLRA, which lies under Part III of that Act.
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Under the CLRA, all regular child custody orders made under Part III of the CLRA at a Family Court branch location, with the explicit exception of those made under ss. 59 and 60, are appealed under s. 21.9.1 of the CJA. Therefore, an appeal from them lies to the Divisional Court.”