How Do I Appeal a Provincial Court Decision?
Under s. 233(1) of the Family Law Act, only final decisions of the Provincial Court can be appealed. Appeals of final decisions of that court are made to the Supreme Court. Interim decisions of the Provincial Court can only be challenged by a judicial review under the aptly named Judicial Review Procedure Act. This information is about appeals to the Supreme Court.
|Form F80||Notice of Appeal||HTML|
Making an appeal to the Supreme Court
To appeal a decision, you must file a form called a Notice of Appeal in Form F80 within 40 days of the decision. Appeals from the Provincial Court are governed by Rule 18-3 of the Supreme Court Family Rules. This form is a lot more complex than the forms you've used in the Provincial Court. In in the form you must say:
- when the order you are appealing was made,
- the name of the judge who made the order,
- that you are bringing your appeal pursuant to s. 233 of the Family Law Act, and
- the reason or reasons why you are bringing the appeal.
Once you've filled out your Notice of Appeal, you must file it in the registry of the Supreme Court. The Supreme Court will charge you a fee to do this. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your new court proceeding. You must then serve the notice on the other person by personal service, and file another copy of the notice in the Provincial Court registry where the order was made
Reasons for appealing a decision
When a judge makes a decision following a hearing, the judge does three things. First, the judge makes a decision about the evidence and what the facts of the case are; this is called making a finding of fact. Second, the judge decides what the law applicable to the case is. Third, the judge applies the law to the facts. These last two steps are called findings of law.
You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal and show that the judge made an error in his or her findings of fact or an error in his or her findings of law.
In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact. Because appeal courts do not hear the evidence all over again, unless the trial judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the trial judge found them to be.
Most often, appeals are based on errors in the judge's conclusions about the applicable law or how the judge applied the law to the facts, called an error of law. In appeals like these, the argument is based on a claim that the judge didn't apply the correct legal test or failed to properly apply the legal test.
Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing a judge's decision, you should seriously consider hiring a lawyer.
Deadlines and procedures
After the other side has been served with your Notice of Appeal, he or she will have seven days to file a Notice of Interest in Form F77. This form is used to acknowledge your appeal.
Normally you would have to apply to the court for some directions about how your appeal will be conducted. However, because your appeal is about a family law problem, the directions for your appeal are set out in the standard set of directions in Supreme Court Family Practice Direction 10, which is available on the court's website and at the court registry.
According to the Practice Direction, you must order a transcript of the Provincial Court hearing that resulted in the decision you are appealing. Within 30 days after filing your Notice of Appeal, you must provide proof that you have ordered these transcripts.
The cost of appeals
There are two fees that you'll have to pay to have your appeal heard. First, you'll have to pay a fee to file your Notice of Appeal. Second, and more expensively, you'll have to pay for the transcript of the Provincial Court hearing.
Transcripts are produced by private companies. A court reporter employed by the company retrieves the tape of the hearing from the court and painstakingly transcribes each and every word. JC Word, for example, a Vancouver firm, charges about $200 to $300 to transcribe a half-day hearing. On top of that, you'll have to provide complete copies of your transcripts to the other side and the court.
Be warned! Appeals can be expensive.
|The above was last reviewed for legal accuracy by Mary Mouat QC and Samantha Rapoport, June 26, 2017.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|