How Do I Appeal an Interim Supreme Court Decision?
An interim order is any order that is made before a final order. Interim orders are made in the Supreme Court by a master or judge in chambers. Final orders are made by a judge following trial 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.
Interim orders made by masters in family law matters can be appealed as of right to a judge of the Supreme Court.
|Form F98||Notice of Appeal from Master Registrar or Special Referee||HTML|
Under Rule 22-7, an appeal is brought by filing a Notice of Appeal 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 act, 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 registry 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 hearing 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.
Interim orders made by judges can only be appealed to the Court of 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 Application 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 lawyer 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 decision
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 evidence and what the facts of the case are; this is called making a finding 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 mistake 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 case, 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 law. In appeals like these, the argument is based on a claim 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.
|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.|