How Do I Appeal an Interim Supreme Court Decision?

Interim orders are made in the Supreme Court by an associate judge 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 are different, depending on whether the order was made by a judge or an associate judge.

Associate Judge's orders

An interim order made by an associate judge can be appealed as of right to a judge of the Supreme Court. Because the appeal is being heard by a judge from the same level of court, you're not going to have to deal with Court of Appeal Rules and Court of Appeal forms.

Steps for appealing an associate judge's order

Under Rule 22-7 of the Supreme Court Family Rules, an appeal from a judge's decision is brought by filing a Notice of Appeal from Associate Judge, Registrar or Special Referee in Form F98 of the Supreme Court Family Rules within 14 days of the date the order was made. This deadline applies to orders that the associate judge made under the Supreme Court Family Rules or the Family Law Act. If the associate judge made orders under the Divorce Act, you have to look at section 21(3) of that Act, which says that an appeal must be made within 30 days.

The date the appeal will be heard is written on the Form 98 Notice of Appeal from Associate Judge, Registrar or Special Referee. 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 Form F98 does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the associate judge who made the order for an order that the order will be suspended until the appeal is heard.

Judge's orders

An order made by a judge of the BC Supreme Court can only be overturned by a judge from a higher court, which is the Court of Appeal.

Getting permission to appeal

To appeal a judge's order, even an interim one, you need to go to the Court of Appeal, but you will probably need to get permission first. You need to read Rule 11 of the Court of Appeal Rules to determine if the order you want to appeal is a limited appeal order or not. Since it's an interim order, it probably will require leave. A good resource to help you understand Rule 11 is The CanLII Manual to British Columbia Civil Litigation, and it has a section about understanding what are limited appeal orders under Rule 11 of the Court of Appeal Rules. Again, most interim orders are limited appeal orders, and certainly any interim orders made under the Family Law Act or the Divorce Act are limited appeal orders. Limited appeal orders can only be appealed with leave, i.e. the Court of Appeal's permission.

Steps for appealing a judge's order

If you're lucky and the order you're appealing is not a limited appeal order, you file a Form 1 Notice of Appeal from the Court of Appeal Rules within 30 days of the order being made.

If you're like most appellants with an interim order, or if you are not sure, you will need to go through the steps for requesting leave to have the appeal heard. This is done by:

1. Completing and filing a Form 1 Notice of Appeal, but indicating that leave to appeal is required.
2. Getting a hearing date for your application from the registry.
3. Completing a Form 4 Notice of Application, and indicating on the form that the application is for leave to appeal.
4. Preparing an appeal application book.
5. Not more than 30 days after you filed the Form 1 Notice of Application:
   • Filing both the Form 4 Notice of Application and the appeal application book.
   • Serving the Form 4 on the respondents at least 10 days before the hearing date.

The rest of the appeal process is set out in the Court of Appeal Rules. These are fairly complicated, and you should seriously consider hiring a lawyer to help you with your appeal.

If you are going ahead without a lawyer, be sure to read on for tips for representing yourself.

It's important to note that filing a Notice of Appeal or a Notice of Application in the Court 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 original order for an added order that the order you will be appealing will be suspended until the appeal is heard.

Representing yourself in the BC Court of Appeal

For more information on the appeals process through the Court of Appeal, see the Justice Education Society's Court of Appeal BC Online Help Guide. There are separate guidebooks for appellants and respondents, visual flow charts called process overviews for appellants and respondents, and links to MS Word versions of the Court of Appeal forms. This is a very valuable resource for self-represented people.

You might also find the The CanLII Manual to British Columbia Civil Litigation (which is freely available online), and its chapter about the Court of Appeal Rules, to be helpful if you have to navigate this on your own. Be warned that the procedures and forms for the BC Court of Appeal changed in 2022, so be cautious if you're reading any books or guides that were written before July 2022 and not revised since then.

Reasons for appealing a decision

When an associate judge or judge makes a decision following a hearing, they do 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, and you cannot appeal a decision just to stall its consequences. You must have a proper legal reason for bringing the appeal.

In many cases, you will not be able to appeal a decision because the court made an mistake about a finding of fact. Because an appeal court does not hear the evidence all over again, unless the associate judge 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.

Either of these kinds of errors is 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.

Because an interim order is only temporary, lasting until the trial, you should seriously consider whether an appeal is necessary, or you should just wait until the trial to have it changed.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Elham Jalilian, September 18, 2023.

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.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has 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."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

A provincially-appointed judicial official of the BC Supreme Court with limited jurisdiction, usually charged with making interim decisions before final judgment in a court proceeding, and certain decisions after final judgment, including the assessment of lawyers' bills and the settling of bills of cost. Until January 2024, associate judges were referred to as masters. See "interim application," "judge" and "jurisdiction."

A person appointed by the federal or provincial government 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, subject to appeal.

A type of hearing in the BC Supreme Court, where a judge or an associate judge hears applications. Unlike trials, evidence is presented through affidavits instead of live witnesses, the proceedings are less formal (no one wears robes), and the result is often an interim order instead of a final order. Chambers can address procedural issues, but also interim orders dealing with parenting or support concerns, or other issues that come up before a family law trial is held.

The testing of the claims 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 decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

A mandatory direction of the court that is 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. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Any 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."

An 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. See "appellant" and "respondent."

The highest level of court in the province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts, and certain tribunals. See "appeal."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) 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 their 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."

A legal document required under the rules of British Columbia's Supreme Court and Court of Appeal which is used to give notice of a party's intention to appeal a decision. See "appeal" and "decision."

A 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.

In 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."

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

(1) A 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, or (2) a courthouse.

A 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."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Facts, or proof tending to support the existence 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."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A judge’s conclusion about the facts in a court proceeding, made after hearing all the evidence. See "decision," "error of fact" and "question of fact."

(1) In 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. (2) In contract law, an unintentional misunderstanding as to the nature of a term agreed to in a contract that may justify setting aside all or part of the contract. See "bad faith" and "contract."

A ground of appeal based on a claim that the trial judge did not apply the law correctly in reaching their decision. This is the most common ground of appeal. See "appeal" and "error of fact."

In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge or arbitrator following the presentation of evidence, or to a written summary of argument.

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.