Background
Edwin Newton and Melanie Grillo are unmarried parties involved in family law proceedings in the Hamilton Family Court. On June 16, 2025, the trial judge issued an order made exclusively under provincial family law legislation. Ms. Grillo sought to appeal that order to the Court of Appeal for Ontario. Mr. Newton moved to quash the appeal, contending that the Court of Appeal lacked jurisdiction to hear it.
Ms. Grillo resisted the motion on two grounds. First, she argued that Mr. Newton’s trial submissions had referenced principles drawn from the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which she contended brought the matter within the Court of Appeal’s jurisdiction. Second, she argued that Mr. Newton had waited until after the appeal was perfected before raising the jurisdictional objection, and that this delay should defeat his motion to quash. A separate appeal by Ms. Grillo from a February 20, 2026 order was not before the court on this motion.
The Court’s Holding
The Court of Appeal unanimously allowed the motion to quash. Because the June 16, 2025 order was made solely under provincial family law legislation, the appeal lies to the Divisional Court under s. 19(1)(a.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and this court has no jurisdiction under s. 6(1)(b)(i) of that Act. Neither of Ms. Grillo’s arguments altered that conclusion. The court noted that the parties were not married, so the Divorce Act had no application at all, and that references to its underlying principles in trial submissions do not form part of the order under appeal. On the delay argument, the court held that jurisdictional defects are not cured by the timing of when they are raised.
The court also declined to exercise its discretion under s. 110(1) of the Courts of Justice Act to transfer the appeal to the Divisional Court, finding it was not in the interests of justice to do so. The appeal was assessed as having little chance of success, and both Mr. Newton and the parties’ child had suffered—and would continue to suffer—prejudice from further delay. Ms. Grillo had been on notice of the jurisdictional issue since a March 11, 2026 letter from the court yet had taken no steps to re-route the appeal to the proper tribunal. Costs of $1,000 were awarded to Mr. Newton.
Key Takeaways
- An appeal from a family court order made exclusively under provincial legislation must go to the Divisional Court, not the Court of Appeal for Ontario; the latter has no jurisdiction under ss. 6(1)(b)(i) and 19(1)(a.1) of the Courts of Justice Act.
- References at trial to principles drawn from federal legislation (such as the Divorce Act) do not bring a purely provincial order within the Court of Appeal’s jurisdiction, and in any event the Divorce Act does not apply to unmarried parties.
- Jurisdictional defects cannot be waived or cured by delay in raising them — the court either has jurisdiction or it does not, regardless of when the issue is brought forward.
- Even where a transfer to the correct court is technically available under s. 110(1) of the Courts of Justice Act, the court may refuse if the appeal lacks merit, prejudice to the other party is ongoing, and the appellant has taken no steps to correct the error after receiving notice.
Why It Matters
This decision is a clear reminder for family law litigants and counsel in Ontario that the route of appeal depends entirely on the legislative basis of the order being appealed, not on arguments made at trial or the federal-provincial character of underlying principles invoked. Filing in the wrong appellate court is not a harmless procedural misstep that can be regularized simply by delay or acquiescence of the other side.
The court’s refusal to transfer the appeal also signals that s. 110(1) discretion will not be exercised as a rescue mechanism where an appellant has been warned of the problem and has failed to act. Parties who receive jurisdictional objections — whether by opposing motion or court notice — must move promptly to correct their filing or risk losing the appeal entirely.