How Do I Appeal an Interim Supreme Court Decision?

From Clicklaw Wikibooks

An interim orderAny order made prior to the final resolution of a court proceeding by trial or by settlement; a temporary, rather than permanent or final order. See "application" and "interim application." is any orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." that is made before a final order. Interim orders are made in the Supreme Court by a masterA provincially-appointed judicial official with limited jurisdiction usually charged with making decisions before and after final judgment in a court proceeding, including the hearing of interim applications, the assessment of lawyers' bills and the settling of bills of cost. See "interim application," "judge," and "jurisdiction." or judgeA person appointed by the federal or provincial governments to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, and are subject to appeal. in chambers. Final orders are made by a judge following trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." or with the agreement of the parties. The rules about appealing interim orders change, depending on whether the order was made by a judge or a master.

Master's orders

Interim orders made by masters in family law matters can be appealed as of right to a judge of the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.".

Forms involved

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Form F98 Notice of Appeal from Master Registrar or Special Referee PDF HTML

Steps

Under Rule 22-7, an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. is brought by filing a Notice of AppealA legal document required by the rules of court which is used to give notice of a party's intention to appeal a decision. See "appeal" and "decision." in Form F98 within 14 days of the date the order was made. This deadline applies to orders made under the Supreme Court Family Rules or the Family Law Act. The appeals of orders made under the Divorce Act are governed by that actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations.", and s. 21(3) says that an appeal must be made within 30 days.

The date the appeal will be heard is written on the Notice of Appeal. It is a good idea to leave this part of the form blank until you've had a chance to talk to the court registryA central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed. staff. Depending on how long your appeal will take to be heard and the court's schedule, they may want to select the date of the hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." for you.

It's important to know that filing a Notice of Appeal does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the master who made the order for an order that the order will be suspended until the appeal is heard.

Judge's orders

Interim orders made by judges can only be appealed to the Court of AppealThe highest level of court in this province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts and certain tribunals. See "appeal.". Unlike interim orders made by masters, only orders made under the Divorce Act can be appealed as of right. Orders made under the Supreme Court Family Rules or the Family Law Act can only be appealed with the permission of the Court of Appeal.

Appeals of Divorce Act orders must be made within 30 days by filing a Notice of Appeal from the Court of Appeal forms. Appeals of orders made under the Supreme Court Family Rules or the Family Law Act must be made within 30 days by filing a Notice of ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief." for Leave to Appeal from the Court of Appeal forms.

The requirements for the remainder of the appeal process are set out in the Court of Appeal Rules and are fairly complicated, and you should seriously consider hiring a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." to help you with your appeal.

It's important to know that filing a Notice of Appeal does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the judge who made the order for an order that the order will be suspended until the appeal is heard.

Reasons for appealing a decisionIn law, a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a judgment; the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as his or her findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law," and "findings of fact."

When a master or judge makes a decision following a hearing, he or she does three things. First, the court makes a decision about the evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." and what the facts of the case are; this is called making a finding of factA judge’s conclusion about the facts in a court proceeding, made after hearing all the evidence. See "decision" and "question of fact.". Second, the court decides what the law applicable to the case is. Third, the court 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.

In many cases, you will not be able to appeal a decision because of a mistakeIn law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error not made in bad faith. In contract law, an unintended misunderstanding as to the nature of a term agreed to in a contract. See "bad faith" and "contract." in the court's findings of fact. Because an appeal court does not hear the evidence all over again, unless the master or judge made an enormous error in deciding the facts of the caseIn law, a court proceeding; a lawsuit; an action; a cause of action; a claim. Also the historic decisions of the court. See "action," "case law, " "court proceeding," and "precedent.", the facts that you will rely on at your appeal are the facts as the court found them to be.

Most often, appeals are based on errors in the court's conclusions about the applicable law or how the judge applied the law to the facts, called an error of lawA ground of appeal based on a claim that the trial judge did not apply the law correctly in reaching his or her decision. This is the most common ground of appeal. See "appeal.". In appeals like these, the argumentIn law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge following the presentation of evidence, or to a written summary of argument. is based on a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. that the court 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 an interim decision, you should seriously consider hiring a lawyer.


Creativecommonssmall.png 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.
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