Family Law Appeals in Ontario
Appealing a family law order in Ontario can be a daunting prospect. Let’s be realistic: The appellate court will dismiss most appeals. However, there is a glimmer of hope provided that the judge committed a significant legal error. In this blog, we will introduce some basics with respect to the complexities of appealing family law orders in Ontario. We will explain the process in our firm of how we consider whether or not to launch an appeal.
Different Routes
In Ontario, family law appeals can take different routes depending on the court where the original order was made. You might be appealing an order from the Ontario Court of Justice or from the Superior Court of Justice. OCJ appeals go to a single judge of the Superior Court of Justice. SCJ appeals usually go the Ontario Divisional Court (ie. 3 SCJ judges exercising appellate jurisdiction). But sometimes, the appeal route is directly to the Ontario Court of Appeal. It all depends.
The appellate lawyer must know which set of rules to use for which appeal since OCJ appeal rules are found in the Family Law Rules, whereas SCJ appeals are found in the Rules of Civil Procedure.
Different Rights
From the OCJ, there is an unfettered right to appeal an interim order to a single judge of the SCJ. But you have to serve the Notice of Appeal within seven days. In the SCJ, there is no such automatic right; rather, you have to seek “leave to appeal” (special permission) and while there is lots of paperwork for such a leave motion, you don’t automatically get a personal audience before the court. Most leave motions are dismissed. The attitude is that you should just move your case forward to trial and leave it to the trial judge to correct any errors that might have been made in the first court.
You don’t need any special permission to appeal a final order from either court. But there are deadlines to serve your Notice of Appeal and related documents; it’s usually thirty days.
In child protection appeals, the time periods are often further shortened throughout the process.
What’s appealable? An Appeal is not a 2nd kick at the can.
Contrary to popular belief, an appeal is not a retrial of the case. An appeal is not a forum for the rehashing of evidence. On the contrary, an appeal is a measured review of the legalities and procedures that governed the previous judgment.
An appeal hinges on demonstrating errors in legal reasoning, not on presenting new evidence or novel arguments (but mind you in some limited situations, the appellate court might receive new evidence that arose since the trial). A successful appeal demands the identification of a miscarriage of justice. It’s not an argument about the emotions or the specifics of the case but it’s generally speaking about the law itself. This requires an analytical and disciplined approach that is distinct from the narrative-based strategies often deployed in motion and trial settings.
One might be able to appeal if the judge made factual errors that are so outrageous that the judge fell into legal error. It is not an issue of the judge favouring one witness (who you think was not credible) over the other; judges can do that and the appellate court will not likely intervene. Rather, it is an issue of the judge getting the facts all mixed up or just plain wrong and those errors would have surely affected the result. More attractive to the appellate court is the opportunity to correct an error in the judge’s legal analysis. Did the judge misapply the law to the facts of this situation? Did this legal error affect the result? The bar for appellate intervention is set quite high. Appellate courts tend to emphasize the finality often attributed to initial family law rulings, especially those where the judge observed the demeanour of the witnesses.
Hints
Time is of the essence when considering an appeal. Missing the stringent deadlines can mean forfeiting the opportunity to correct a wrong. The appellate lawyer must understand the timelines for serving and filing notices of appeal, the accompanying documents, and how to draft a persuasive attention-grabbing Notice of Appeal. (Hints: The grounds for the appeal must be eye catchers. Less grounds for appeal are better than many grounds.)
The 30-Day Window for Serving a Notice of Appeal
For final orders, the critical window is 30 days. This finite period serves as a test of the seriousness with which an appeal is pursued, and the agility it demands can be disorienting for those not accustomed to the pace and gravity of the Rules’ stringencies. This requires an immediate assessment post-judgment and an informed decision on the path forward.
How Gene C. Colman Considers an Intended Appeal
I require some basic documents at the outset to have a quick look at:
- The judge’s written decision;
- For Final Orders – the “Trial Record”;
- For Interim Orders – all pleadings, orders and endorsements thus far. (We often advise people to just continue with their case since OCJ appeals and SCJ leave to appeal motions are so rarely successful.)
The prospective consultee places those documents into a shared Dropbox. I then have a quick look at the extent of the documents. I then quote a block fee to review the documents in detail, to meet with the intended appellant, and to come up with an opinion on the merits of the appeal. The person is free to pay the block fee for the review and consultation or not. Once I receive the fee, then I delve into the materials and set up a personal zoom meeting with the person to secure further insights. At the consultation, I inform the person how much up-front money is required to get down to work.
Ontario Family Lawyer
If you’re considering the daunting task of appealing a family law order in Ontario, it is best to have an experienced appellate lawyer rather than try to do it on your own. Contact us today to take the first steps towards bringing your appeal or being advised not to bring an appeal. It all depends.
