Appealing a child protection order
Learn how to appeal a child protection order, including where to file your appeal and how much time you have.
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When a Children's Aid Society is concerned that a child is at risk of being harmed, they may:
- start a child protection case in court
- ask a judge for a child protection order
A child protection order sets out whether a child needs protection, and if so, who should care for the child in a way that meets the best interests of the child.
If you disagree with the judge's order, you can appeal the judge's decision. This means that you want another judge to look at the decision because you think that a mistake was made during the case.
You have 30 days from the date of the judge's order to file the appeal. It is important to follow all timelines because your appeal can be dismissed if you do not serve your documents on time. If you miss this deadline, you can ask the court for more time, but you will need to explain why you missed the deadline.
Appealing a child protection order can be complicated. You should talk to a lawyer who specializes in child protection cases.
Where you appeal child protection orders
Child protection cases are started at either:
- the Ontario Court of Justice
- the Family Court branch of the Superior Court of Justice
The court that will hear your appeal depends on which court made the original order.
Ontario Court of Justice
If the order was made by a judge at the Ontario Court of Justice, you must appeal to the Superior Court of Justice. See section 121(2.1) of the Child, Youth and Family Services Act, 2017 and rule 38 of the Family Law Rules.
Superior Court of Justice
If the order was made by a judge at the Family Court branch of the Superior Court of Justice, you must appeal to the Divisional Court of the Superior Court of Justice. See section 121(2.1) of the Child, Youth and Family Service Act, 2017 and rules 61, 62 and 63 of the Rules of Civil Procedure. You can find more information in the Guide to Appeals in Divisional Court.
You may also appeal the orders of the Superior Court of Justice and the Divisional Court to the Ontario Court of Appeal. See section 6 of the Courts of Justice Act and rules 61, 62 and 63 of the Rules of Civil Procedure.
Read the Guide to Family Law Appeals for more information on family law appeals.
Steps to appeal a child protection order
Follow the steps below to appeal a child protection order.
Step 1: complete a Notice of Appeal
To start the appeal process, you must fill out a Notice of Appeal that describes:
- which court you are appealing to
- the order you are appealing
- a brief explanation why you are appealing (called the grounds of appeal)
- at the hearing of the appeal you will only be able to make arguments based on the grounds of appeal that you stated in your Notice of Appeal, unless the court gives you permission to change them
If you are appealing to the Superior Court of Justice, you must use Form 38: Notice of Appeal of the Family Law Rules.
If you are appealing to the Divisional Court or the Court of Appeal, you must use, either:
- Form 61A.1: Notice of Appeal to the Divisional Court
- Form 61A: Notice of Appeal to an Appellate Court of the Rules of Civil Procedure
Step 2: serve the Notice of Appeal
Once you complete the Notice of Appeal, you must serve the notice within 30 days of the order. You must serve the notice on:
- every party affected by the appeal or entitled to appeal
- every other person who was entitled to notice under section 79(3) of the Child, Youth and Family Services Act, 2017 who appeared at the hearing
- the court that made the order
"Serving" is giving copies of documents to other parties in the appeal. This is how you notify them of the step you are taking and the information you will be presenting to the court and gives them an opportunity to respond. Rule 6 of the Family Law Rules tells you about how to serve documents. For more information about serving documents, see Part 6 of the Ministry of the Attorney General's Guide to Procedures in Family Court.
Step 3: file the Notice of Appeal
You must file the Notice of Appeal with Affidavits of Service at the appeal court within 10 days of the notice being served.
An Affidavit of Service is proof to the court that the other parties received the documents. It indicates when, where and how the documents were served.
Step 4: order transcripts
A transcript is a written document that contains the details that were recorded at the hearing. Transcripts are prepared by court reporters.
You should contact the Children's Aid Society and any other parties involved in the case to try and reach an agreement about whether you need any, all or some of the transcripts of your hearing. If you cannot come to an agreement, you must order all the transcripts.
Transcripts from court proceedings in Ontario are produced and certified by independent, authorized court transcriptionists and are listed on the Authorized Court Transcriptionists for Ontario website. To order a transcript, you must select and contact an authorized court transcriptionist and complete a Transcript Order Form. The authorized court transcriptionist will finalize the form and submit it to the court for processing.
Fees for court transcript are set out in Ontario Regulation 94/14 – Fees for Court Transcripts. Deposits and/or payments of the regulated fees are arranged between you and the transcriptionist you choose. If you are receiving legal aid assistance, you should apply to Legal Aid Ontario for the cost of the transcripts and the appeal.
Within 30 days of filing your Notice of Appeal with the court, you must also file either:
- proof you have ordered the transcripts
- confirmation from all parties that the transcripts are not necessary
Step 5: get a copy of the order you are appealing
To prepare your appeal record, you will need a copy of the order you are appealing. Before the court can issue the order, all parties 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.
Step 6: prepare an appeal record
You must create an appeal record. In accordance with the Family Law Rules, the appeal record includes five sections, with documents that are put together in this order:
- table of contents that describes each document in appeal the record
- the notice of appeal (either Form 38, 61A or 61A.1)
- a copy of the signed and sealed court order you are appealing, including a typed copy of the judge's reasons for the order, if any were made
- the transcripts
- any other material that was before the court that made the order being appealed, and that is necessary for the appeal, this includes exhibits and copies of any other documents that the appeal court should see
See rule 38(17) of the Family Law Rules or rule 61.10 of the Rules of Civil Procedure.
Step 7: complete an appellant's factum
If you are appealing the order, you are called the appellant.
A factum is a summary of the facts, issues, law and arguments you are making in support of your appeal. The factum cannot be more than 30 pages. You should talk to a lawyer to get help when completing a factum.
The factum must include the following sections:
- Identification: a statement identifying who you are (appellant), the other party/parties (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 that refers to the law related to each issue
- Order: a statement of the terms of the order you are asking the appeal court to make, including any order for costs
- The time estimate: the amount of time you will need to talk to the court about your case
- List of authorities: a list of all the law you will be relying on including statues, regulations, the Family Law Rules or Rules of Civil Procedure, cases and other authorities
- Legislation: a copy of all relevant parts of the statues, regulations and rules you will be relying on
See rule 38 (18) of the Family Law Rules or rule 61.11 of the Rules of Civil Procedure.
Step 8: serve your appeal record and appellant's factum
Once you have completed the appeal record and appellant's factum, you must serve the Children's Aid Society and any other parties involved in the case.
See rule 6 of the Family Law Rules and Part 6 of the Ministry of the Attorney General's Guide to Procedures in Family Court.
Step 9: file your appeal record and appellant's factum
Once you have served the other parties, you must file your appeal record and factum with the court that is hearing your appeal. This is called “perfecting your appeal”, which means that all the documents necessary for the hearing of the appeal have been served and filed with the court with proof of service within the time periods set out in the Family Law Rules.
If a transcript is not needed for your appeal, you must serve and file your appeal record and appellant's factum no later than 14 days after you filed your notice of appeal (step 3).
If a transcript is needed for your appeal, you must serve and file your appeal record and appellant's factum within 30 days of receiving a notice that your transcripts are ready.
The clerk at the courthouse will schedule the appeal within 60 days of all parties filing their documents.
Step 10: go to the appeal hearing
The final step in appealing a child protection order is to attend at court and present your arguments about why the original order should be changed as you requested.
To prepare for the appeal hearing you should:
- review all the documents and arguments you will make in support of the appeal or in response to the other parties' arguments about the appeal
- make a list of the points you want to make
- think about the questions the judge(s) might ask