Ontario Court of Appeal says Divisional Court has jurisdiction over family law appeal

The Ontario Court of Appeal has quashed an appeal upon determining that the Ontario Divisional Court had jurisdiction over the appeal from a Family Court judge’s final order issued exclusively under a provision of an Ontario act or regulation. 

In Porter v. Kik, 2026 ONCA 159, the parties had been involved in acrimonious family law proceedings for some time. 

A Nov. 18, 2023 order required the appellant to post security for trial costs of $65,000. She failed to comply with this order or an associated costs order amounting to $7,500. She applied for relief from the obligation to comply with the two orders. 

The court denied the appellant’s request as it did not doubt the correctness of the orders. The respondent moved to compel the appellant to comply with the orders. 

In a Dec. 9, 2024 order under the Family Law Rules, O. Reg. 114/99, Justice Scott Latimer of the Ontario Superior Court of Justice granted the respondent’s motion and ordered the appellant to comply with the orders. If the appellant failed to do so, the respondent could proceed with an uncontested trial. 

The motion judge explained that the appellant’s failure to pay the orders aligned with her overall litigation approach. The judge saw no sign that she intended to comply in the future. 

On Jan. 8, 2025, the appellant’s counsel filed a notice of appeal against the December 2024 order. 

Through a May 28, 2025 letter to the parties’ counsel, the office of the appeal court’s executive legal officer raised the possibility that s. 19(1)(a.1) of Ontario’s Courts of Justice Act, 1990 (CJA) might apply, and that the appeal might fall within the Divisional Court’s jurisdiction. 

The appellant’s counsel said they could request the appeal’s transfer to the Divisional Court. However, months passed without efforts made to either commence the transfer to the Divisional Court or proceed with the matter before the appeal court. 

The respondent’s counsel unsuccessfully followed up with the appellant’s counsel. 

Appeal quashed

The Court of Appeal for Ontario found it lacked jurisdiction over the appeal, which lay to the Divisional Court. The appeal court awarded the respondent all-inclusive costs fixed at $12,375. 

The appeal court ruled that the appeal properly lay to the Divisional Court under s. 19(1)(a.1) of the CJA, as a Family Court judge had made the December 2024 order at the Kitchener Superior Court of Justice exclusively under provincial legislation, specifically Ontario’s Family Law Rules. 

The parties had two options before the appeal court to move the matter along, rather than letting it languish, in these circumstances: 

• If the parties agreed to transfer the appeal to the Divisional Court, they could file a consent order without needing to attend personally. If appropriate, an appeal court judge would issue the order. 
• The respondent could move to quash the appeal for lack of jurisdiction. The appeal court would schedule the motion hearing at an early date.