Appealing a Child Protection Order
Appeals of Child Protection Orders are complicated. You should always consult a lawyer when appealing an order.
How Do I Appeal A Child Protection Order?
If a judge has made a child protection order that you want to have changed, you may ask another court to review the order. This is called an appeal.
You Must Appeal The Order Within 30 Days!
Timelines Are Very Important!
Your appeal can be dismissed for delay if you do not serve your documents on time.
Which Court Hears The Appeal?
If a judge in the Ontario Court of Justice made the order, you must appeal to the Superior Court of Justice: see rule 38 of the Family Law Rules at www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm.
If a judge in the Superior Court of Justice Family Court made the order, you must appeal to the Superior Court of Justice, Divisional Court: see rules 61, 62 and 63 of the Rules of Civil Procedure at www.e-laws.gov.on.ca/html/regs/english/elaws_regs_900194_e.htm.
You may also appeal orders of the Superior Court of Justice and the Superior Court of Justice, Divisional Court, to the Ontario Court of Appeal. See rules 61, 62 and 63 of the Rules of Civil Procedure.
To find the courthouse nearest you visit: http://www.attorneygeneral.jus.gov.on.ca/english/courts/Court_Addresses/.
What Do I Have To Do To Appeal?
- Complete a Notice of Appeal - Get forms at the courthouse or online at http://www.ontariocourtforms.on.ca/english/family
- For appeals to the Superior Court of Justice, use Form 38 of the Family Law Rules.
- For appeals to the Divisional Court or Court of Appeal, use Form 61A of the Rules of Civil Procedure.
- Serve the Notice of Appeal - See Rule 6 of the Family Law Rules. No later than 30 days after the date of the judge's order, serve the notice on:
- the Children's Aid Society
- any other parties that participated in the trial, and
- the court that made the order.
- File the Notice of Appeal - File the notice of appeal with affidavits of service at the appeal court no later than 10 days after it is served.
- Order Transcripts - A transcript is a written copy of everything that happened at the hearing and is prepared by a court reporter.
Contact the Children's Aid Society and any other parties to try to reach an agreement about whether you need any, all, or only some of the transcripts. If you cannot agree, you must order all of the transcripts.
How Do I Order Transcripts?
To order transcripts, go to the courthouse where the judge heard your case and ask the court staff for the proper form.
Generally, you will have to pay for the transcripts before the court reporter will begin to work on them. If you are receiving Legal Aid assistance, you should apply to Legal Aid Ontario to cover the cost of the transcripts and the appeal.
Within 30 days of filing your Notice of Appeal with the appeal court, you must file:
- proof that you have ordered the transcripts, or
- confirmation from all of the parties that transcripts are not necessary.
Make sure you file this on time!
- Get a copy of the order that you are appealing - The order sets out the terms of the judge's decision and is different from the reasons for judgment.
Before the court can issue the order, all parties who participated in the trial must agree that the terms in the order are accurate. If you do not have a copy of the order, ask your lawyer or the Children's Aid Society for a copy.
- Prepare an Appeal Record - See Rule 38 (7) or 61 (10) www.e-laws.gov.on.ca/html/regs/english/elaws.
The appeal record includes five different parts and must be assembled in the following order:
- Table of Contents
- Notice of Appeal (Form 38 or 61A)
- Order - A copy of the signed and sealed court order you are appealing. If the judge gave reasons for why he or she made the order, include these as well.
- Exhibits - Copies of any other documents that were made exhibits in the trial that the appeal court should see.
- Complete an Appellant's Factum - See Rule 38 (18) or 61.10 . www.e-laws.gov.on.ca/html/regs/english/elaws
If you are appealing an order, you are the appellant.
A factum is a summary of the facts, issues, law and argument you want the court to consider. It cannot be longer than 30 pages. You should consult a lawyer to help with this.
The factum must include the following parts:
- Identification - Who you are (the appellant); who the other party or parties are (the respondents); which court made the order; and the terms of the order.
- Overview - A brief statement about your case and the issues to be decided at the appeal.
- Facts - A brief summary of the facts a judge needs to understand when deciding the appeal.
- Issues - A brief summary of each issue and your argument. The argument should refer to the law relating to each issue.
- Order - The terms of the order you are asking the appeal court to make, including any order for costs.
- Time Estimate - How much time you will need to talk to the court about your case.
- List of Authorities - A list of all the law that you will be relying on. This includes statutes, regulations, the Family Law Rules or Rules of Civil Procedure, cases and other authorities.
- Legislation - A copy of all relevant parts of the statutes, regulations and rules that you will be relying on.
- Serve your Appeal Record and Appellant's Factum - You must serve the Children's Aid Society and any other parties. See rule 6 of the Family Law Rules.
- File your Appeal Record and Appellant's Factum - After you have served the other parties, file your Appeal Record and Factum with the court that is hearing the appeal.
- If a transcript is not required for your appeal, you must serve and file your documents no later than 14 days after you filed your Notice of Appeal.
- If a transcript is required for your appeal, you must serve and file your documents no later than 30 days from the day you receive notice that the transcripts are ready.
Within 60 days of all parties filing their documents, the clerk at the courthouse will schedule the appeal.
- Go to the Appeal - Prepare for your court date. Arrive on time with a copy of your documents and a paper and pen. Think about what you want to say.
You should also read section 69 of the Child and Family Services Act at www.search.e-laws.gov.on.ca.
You may qualify for free legal help.
Call: 1-800-668-8258 or your local Legal Aid office
DISCLAIMER: The information in this pamphlet should not be used as a substitute for getting legal advice from a lawyer.
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