How Do I Appeal a Court of Appeal Decision?

Once the BC Court of Appeal has made a decision about your family law matter, applying for leave appeal to the Supreme Court of Canada is your last resort. Statistically speaking, very few family law appeals make it before the Supreme Court of Canada, however. You will need to consider that:

• The Supreme Court of Canada does not have the capacity to hear every appeal brought before it.
• There is no automatic right to have your family law appeal heard by the Supreme Court of Canada.
• You must first apply for leave to appeal to the Supreme Court of Canada.
• Historically speaking only 5% to 10% of application for leave to appeal are allowed.

Leave to appeal is at complete discretion of the Court

The Supreme Court of Canada has discretion in deciding which cases it will hear, and it uses specific criteria to determine if it is in the public interest to grant leave to appeal. When a family law decision of the BC Court of Appeal is appealed to the Supreme Court of Canada, the party seeking appeal must submit an application for leave to appeal which outlines the legal issues at stake, and why it is important for the Supreme Court to hear the case.

The Supreme Court of Canada considers several factors in determining whether to grant leave to appeal a BC Court of Appeal decision about a family law matter:

• Does the case involve a question of public importance?
• Does the case raise new or important issues?
• Does the case conflict with previous decisions of the Supreme Court of Canada or other appellate courts in other provinces?

The Supreme Court of Canada also considers whether the case is within its jurisdiction and whether hearing the appeal would be of value to the parties involved and to the legal system as a whole. If the Supreme Court of Canada grants leave to appeal, it means they have agreed to hear the case and will review the decision of the BC Court of Appeal. The Court will then consider the arguments presented by both parties and make a final decision on the matter. This decision becomes binding and sets a precedent for future cases.

However, if the Supreme Court denies leave to appeal, it means they have decided not to hear the case. This could be for a variety of reasons, including a determination that the case does not raise a significant legal issue or that it is not in the public interest to consider the appeal.

Again, the Supreme Court of Canada's decision to grant or deny leave to appeal is discretionary. Even if a case meets the criteria for leave, the Court may still choose not to hear it. This means that not all family law decisions of the BC Court of Appeal will be reviewed by the Supreme Court of Canada, and the decision of the BC Court of Appeal may be the final decision in the case.

How Supreme Court of Canada leave applications work

When considering applications for leave, the Supreme Court of Canada does not hear evidence and does not hold a formal hearing. Only rarely will the highest court in Canada issue reasons explaining why it granted or denied leave in a particular case. In family law cases, leave is denied much more often than it's allowed.

In general, the court is more likely to grant leave where a case raises an issue that should be decided for the benefit of everyone in the country, not just the couple involved in the Court of Appeal decision.

Information for self-represented litigants

Appeals to the Supreme Court of Canada are far more complicated than appeals to the Court of Appeal, not least because of the requirement of applying for permission to bring the appeal. As a result, it is highly important that you get legal advice from a lawyer to bring an appeal to that court. This wikibook cannot say much more about the matter than that. Get a lawyer.

If you cannot hire a lawyer on your own, you can apply for assistance through Pro Bono Ontario, which has a program specifically designed to deal with potential leave applications to the Supreme Court of Canada, even if you are in British Columbia.

The website of the Supreme Court of Canada does give an overview of the court's role, the rules of court, and the court's special forms. It has a helpful FAQ section with resources for self-represented litigants, including a whole section on applying for leave to appeal, and when you have been named as a respondent on an application for leave to appeal.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Justice Werb, October 12, 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."

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."

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 Canada. This court hears appeals from the decisions of the Federal Court of Appeal and the provincial courts of appeal, including the Court of Appeal for British Columbia. There is no court to appeal to beyond this court. See "Court of Appeal" and "Supreme Court."

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."

In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."

(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."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

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."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

(1) A historical decision of the courts, or (2) the principle that such historic decisions of the court are binding on subsequent judges hearing cases of a similar nature or with similar circumstances. (3) The term may also refer to templates or sample documents used to draft new documents. See "common law."

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."

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

The mandatory guidelines governing the court process and the conduct of litigation generally. Each court has its own rules of court.

The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."