N., D. v. The Children's Aid Society of the Niagara Region
The appeal was dismissed because the Superior Court correctly declined to exercise judicial review/habeas corpus jurisdiction where an effective alternative remedy existed in ongoing Ontario Court of Justice proceedings, leave refusal under s.6(2) JRPA is not appealable, and there was no legislative gap since the...
Source-derived case information.
- Citation
- C42182
- Parties
- Appellant: D.N. (an infant) by his Litigation Guardian N.N.; Appellant: N.N.; Respondent: The Children's Aid Society of the Niagara Region; Respondent: J.N.; Respondent: The Attorney General for Ontario; Respondent: Constable Tracy McCabe
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 15 December 2004
- Procedural Posture
- Judicial Review / Habeas Corpus Proceedings Arising From Family Law Apprehension / Appeal to Court of Appeal From Superior Court Order
- Outcome
- Appeal dismissed.
- Legal Topics
- Parens Patriae Jurisdiction, Habeas Corpus, Judicial Review, Leave Under Judicial Review Procedure Act, Alternative Remedy Doctrine
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
D.N. (an infant) by his Litigation Guardian N.N.
Appellant
N.N.
Appellant
The Children's Aid Society of the Niagara Region
Respondent
J.N.
Respondent
The Attorney General for Ontario
Respondent
Constable Tracy McCabe
Respondent
Procedural Posture
Judicial Review / Habeas Corpus Proceedings Arising From Family Law Apprehension / Appeal to Court of Appeal From Superior Court Order
Legal Issues
- 1 Whether the Superior Court erred in declining jurisdiction to grant judicial review given ongoing Ontario Court of Justice proceedings
- 2 Whether an appeal lies from the refusal to grant leave under s.6(2) of the Judicial Review Procedure Act
- 3 Whether parens patriae jurisdiction or habeas corpus was available where the child was detained pursuant to valid court orders and there is an alternative statutory scheme
Ratio Decidendi
The appeal was dismissed because the Superior Court correctly declined to exercise judicial review/habeas corpus jurisdiction where an effective alternative remedy existed in ongoing Ontario Court of Justice proceedings, leave refusal under s.6(2) JRPA is not appealable, and there was no legislative gap since the child was detained pursuant to valid court orders.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed.
Full Case Text
Judgment text and source record
1 paragraphs
N., D. v. The Children's Aid Society of the Niagara Region Collection Decisions of the Court of Appeal Date 2004-12-15 Docket numbers C42182 Judges Catzman, Marvin Adrian; Rosenberg, Marc; Lang, Susan Elizabeth Subject Family Decision Content DATE: 20041215 DOCKET: C42182 COURT OF APPEAL FOR ONTARIO RE: D.N., an infant by his Litigation Guardian N.N. and N.N., personally (Appellants) - and - THE CHILDREN'S AID SOCIETY OF THE NIAGARA REGION, J.N., THE ATTORNEY GENERAL FOR ONTARIO and CONSTABLE TRACY McCABE (Respondents) BEFORE: CATZMAN, ROSENBERG and LANG JJ.A. COUNSEL: Guy Ungaro for the appellant Donna Wowk for the respondent, The Children’s Aid of the Niagara Region Jennifer Nero In Person HEARD & RELEASED ORALLY: December 8, 2004 On appeal from the order of Justice Barry H. Matheson of the Superior Court of Justice dated July 22, 2004. ENDORSEMENT [1] There are several problems with this appeal. Fundamentally, we agree with the applications judge that it was proper to decline jurisdiction on judicial review given the availability of an effective alternative remedy in the proceedings in the Ontario Court of Justice. [2] Second, we agree with the respondent that no appeal lies to this court from the refusal to grant leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. [3] Finally, the Superior Court will only exercise its parens patriae jurisdiction, whether by way of habeas corpus or otherwise, where there is a gap in the legislative scheme. There is no such gap in this case. This case is not like Winnipeg Child and Family Support Services v. K.(L.W.), [2000] 2 S.C.R. 519, where the application for prerogative relief was brought immediately upon apprehension. In this case, the application was brought one and a half months after the Ontario Court of Justice had assumed jurisdiction and had made orders in relation to the child. The child was no longer in care because of the apprehension by the police officer; the child was being “detained” in accordance with valid court orders and habeas corpus was not available. [4] It is implicit in his reasons that the applications judge exercised his discretion not to determine habeas corpus matter. It was open to him to do so given the ongoing proceedings in the Ontario Court of Justice and the availability of appeal remedies. Accordingly, the appeal is dismissed. Signed: “M.A. Catzman J.A.” “Marc Rosenberg J.A.” “S.E. Lang J.A.”