“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 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.
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. The inconsistency may also encourage forum shopping among litigants. In addition, under the current appeal route structure, the allocation of time dedicated to the development of the jurisprudence through judicial decisions is unequal, with a greater focus and opportunity for clarification of the law for cases that have an appeal route directly to the Court of Appeal. For example, given current appeal routes, fewer decisions involving child protection matters that are heard at first instance at the Ontario Court of Justice will receive Court of Appeal consideration because they must first be appealed to the Superior Court of Justice. On the other hand, cases involving the division of property are appealed from the Superior Court of Justice directly to the Court of Appeal, resulting in a higher focus on family law property divisions than on child protection issues at the Court of Appeal.
The arbitrariness of geographical limitations is accordingly a serious concern, but one that extends far beyond the scope of this case. Legislative reform in this area would be welcome. In particular, it seems to me that, given the tremendous importance of custody matters and the desirability of resolving these matters quickly and finally, careful consideration should be given to providing a single direct appeal to the Court of Appeal, no matter which court makes the initial custody decision.”
Christodoulou v. Christodoulou, 2010 ONCA 93 (CanLII) at 34-36