Court Cases & Orders

Ontario Court of Appeal Speaks Out on Need for Family Law Appeal Reform – Again

Written by Russell Alexander / (905) 655-6335

Ontario Court of Appeal Speaks Out on Need for Family Law Appeal Reform – Again

It’s not often that the Ontario Court of Appeal steps outside of its decision-making role in order to comment on deficiencies in the Family Law justice system.  But that is exactly what it has done – on more than one recent occasion – to call for much-needed reform of the Family Law appeal process.

The Court’s criticisms in Mattina v. Mattina were embedded in a costs ruling following a father’s series of unsuccessful appeal in a custody and access matter, including one that he brought in the wrong court.

Those proceedings had a convoluted history: They started with an unfavourable Family Court ruling denying the father sole custody of his three children (aged 10, 15 and 17), and ordering him to pay the mother’s legal costs to the tune of almost $81,000.

He tried to appeal that ruling to the Divisional Court, which concluded that it did not have the jurisdiction to hear it.  Instead, it transferred the matter to the Court of Appeal for an expedited hearing, and for a decision on how to apportion liability for the costs wasted on preparing for and attending that ill-conceived Divisional Court hearing in the first place.

Thus the matter came before the Court of Appeal, where the father argued that he and the mother should each bear their own costs. The court explained his position:

The father submits that there should be no costs related to the parties’ preparation and attendance before the Divisional Court. The appeal routes in custody and access cases are not straightforward. He calls the costs incurred as they related to the Divisional Court appeal “an institutional loss” that should not attract cost consequences.

Further, the mother should have raised jurisdictional concerns sooner. It would be unfair for the father to be penalized by a costs award because the motion judge at the Divisional Court made an error in assuming jurisdiction and the mother failed to take steps to remedy that error.

The mother disagreed, claiming that the father should never appealed in the first place – and if he did, he should have known he would be on the hook for the mother’s costs once he was (predictably) unsuccessful.  As the court elaborated:

The mother contends that it was unreasonable for the father to appeal, as the appeal had no merit. Second, the mother says that even if the appeal had merit, the father appealed to the wrong court. Instead of conceding the point, once the error was pointed out to him, the father held fast to his position, wasting time and money.

Against this background, the Court of Appeal lamented the confusing pathway to appeals in Family Law cases, and its often-repeated call for reforms of the process. It wrote:

(2)         The costs before the Divisional Court

  1. Confusion surrounding family appeal routes

This court has repeatedly commented on the fact that this province’s family law appeal routes are confusing for the public, counsel, and institutional litigants: Christodoulou v. ChristodoulouMarchildon v. BeitzPriest v. Reilly. In particular, this court in Christodoulou noted the cost implications of this confusion at para. 35:

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.

This case illustrates once again the unnecessary costs parties bear as a result of this confusion. We therefore echo this court’s plea in Priest v. Reilly (at para. 6): “It has been over eight years since MacPherson J.A. in Christodoulou specifically invited legislative reform in this area. This is a serious access to justice problem that must be remedied.”

Given this legislative deficiency, it would be unjust in our view for the father to pay the mother’s costs associated with the appeal before the Divisional Court. The father’s behaviour throughout this case is in our view sufficiently addressed by the costs awards for the remainder of the proceedings.

In light of the convoluted appeal route, and the injustice suffered by the father because of it, the Court parsed the prior costs rulings that had been awarded against the father in favour of the mother.  It deducted almost $25,000 from the total, which it calculated as being those specifically associated with the unfruitful Divisional Court appeal.

For the full text of the Appeal decision on costs, see:

Mattina v. Mattina, 2018

For the lower court decision, see:

Mattina v. Mattina, 2017 

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.