How Do I Appeal a Final Supreme Court Decision?

A final decision of the Supreme Court is made by a judge following trial or by the agreement of the parties without a trial. Orders made by the agreement of the parties are called consent orders.

A judge's final decision is appealed to the Court of Appeal. Because consent orders are made with everyone's agreement, they are almost impossible to appeal. Nevertheless, if an appeal can be made, it will be made to the Court of Appeal, just like a judge's final order.

It's worth noting that the Court of Appeal revised its procedures and changed its forms in July 2023. As a result, you will want to make sure that you're following the new procedures. If you're reading guides about the Court of Appeal process written before July 2023, which might talk about a special form for seeking leave to appeal (which is no longer applicable), you should stop and read up on the changes that were made. A good resource is the New Court Forms, Completion Instructions and Templates information page from the Court of Appeal itself.

Is an appeal appropriate?

You should think twice before you decide that you want to appeal a decision, as appeals can be surprisingly expensive. They're usually not as expensive as trials are, but the cost is still substantial. As well, it isn't always necessary to appeal a decision. This is especially important to consider unless the decision is about division of property or debt. Orders, even final orders, which deal with children, child support, and spousal support can often be varied following the decision. Of course to vary an order, there must have been a significant change in circumstances since the original decision was made. Read the section on Changing Supreme Court Family Law Orders in the chapter Family Law Litigation in Supreme Court in the online edition of this wikibook to learn about what a change in circumstances means and how this might permit variation of an order.

The person bringing an appeal is called the appellant. The other party is called the respondent because that party is responding to the appeal. The trial court, the Supreme Court, is called the lower court or the court below, and the judge who heard the trial is called the trial judge.

Appeals to the Court of Appeal are governed by two things: the Court of Appeal Act and the Court of Appeal Rules. You should be familiar with both the Act and the Rules because both contain guidelines and deadlines for the conduct of an appeal. Reading the Rules is not enough!

Finding the forms

The forms referred to below can be found on the Court of Appeal's website, as well as through the very helpful Justice Education Society's Court of Appeal BC Online Help Guide. Forms are available as both MS Word templates and PDF files. The files marked as "PDF fillable" should be downloaded and saved locally to your computer, then opened directly using a PDF reader rather than your web browser. The PDF fillable forms usually do not work in your web browser's PDF reader.

Making your appeal

To appeal a decision, you must fill out a Notice of Appeal in Form 1 of the Court of Appeal Rules. File it in the registry of the Court of Appeal and serve it on the other side. The Notice of Appeal is a set form that you must fill out. In it you will have to say:

1. the parties to the appeal,
2. the order you are appealing,
3. the relief you are seeking,
4. additional information, including whether the action in which the order under appeal originates has a sealing order or anonymous/publication ban, and
5. information related to service.

The registry of the Court of Appeal will charge you a fee for filing the form, and you'll notice that all of the fees charged by the Court of Appeal are higher than those of the Supreme Court. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your action. You must then serve the Notice of Appeal on the other side.

Be aware that you have 30 days from the day after the was made to file your Notice of Appeal. The date the order is made is what's important, not the date you receive a judge's reasons. Once the 30 days have run out, you will not be able to make your appeal unless you make a special application to the court for an extension of time. In general, the Court of Appeal is very strict and will demand that you obey the deadlines and rules exactly.

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, and you cannot appeal a decision just to stall its consequences. You must have a proper legal reason for bringing the appeal.

In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact, called an error of fact. As the appeal court does 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 correct 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

Notice of Appeal

You have 30 days from the day after the order was made (not the date the order is formally written up and entered in the court registry, but the date the order is issued by the judge) to file your Notice of Appeal and serve it on the other side.

Notice of Appearance

After the respondent has been served with your Notice of Appeal, they will have 10 days to file a Notice of Appearance in Form 2 and serve it on you, acknowledging your appeal. At this point, the respondent may choose to serve a Notice of Cross Appeal in Form 2 against you. This is the respondent's own separate appeal from the trial decision.

Preparing the appeal record, appeal book and transcripts

This is where things start to get expensive. Within 60 days of filing your Form 1 Notice of Appeal, you must obtain a transcript of the testimony in the court appealed from, file the transcript with the court, and serve a copy on the respondent.

The transcript you must obtain is a transcript of all the oral evidence given at trial. You will have to contact a court reporting company and make arrangements for them to transcribe what was said during the court proceedings. Transcripts are produced by private companies under agreement with the Ministry of Attorney General. You can learn more about these transcription companies, their fees, and the regions and types of court proceedings each is able to serve by visiting the BC Government's website’s court transcripts information page. A court reporter employed by the company retrieves the audio of the hearing from the court and painstakingly transcribes each and every word. J.C. Word Assist Ltd., one of the larger companies that provides this service, charges around $10 to $14 per page (depending on the turnaround time you need) to produce transcripts of court hearings. The rule of thumb is that each hour of a hearing is about 30 pages of transcript. So a typical day in court, which is around four hours of actual court time after the breaks are accounted for, will easily cost over $1,200 to transcribe, plus extra fees for copies.

Also within 60 days after bringing an appeal, under Rule 23 of the Court of Appeal Rules you must prepare an appeal record, file it with the court, and serve a copy on the respondent. The appeal record must contain the following:

1. The pleadings that were filed in the original court proceeding (the Notice of Family Claim, the Response to Family Claim, and the Counterclaim). If any of them were amended, use the last amended version.
2. A copy of the entered order under appeal, if available, or, if no copy of the entered order is available, a blank page with an envelope attached in which the copy of the entered order can be inserted once available.
3. A copy of the reasons for judgment.
4. A copy of the Form 1 Notice of Appeal.

Under Rule 26 of the Court of Appeal Rules, within 30 days after filing the appeal record, you must prepare an appeal book. You need to file it with the court, and serve a copy on the respondent. The appeal book contains the documentary exhibits that were entered at the trial that are relevant to the appeal. For example, if the appeal is only about parenting time, you would not need to include all of the financial documents that were put in evidence at trial, just the documents that relate to parenting time.

When preparing your appeal book, pay close attention to the Rules and the form and format they require. There are a couple of companies that will prepare your appeal book for you. You can look for these companies' brochures at the Court of Appeal Registry or search for them online (hint "appeal book preparation" or "appeal book services" along with "British Columbia" will produce some results).

You will need a total of six copies of each of these documents — the transcript, the appeal record, and the appeal book — since the court gets four, you'll need one, and the respondent gets one as well.

Since transcripts can often run to several hundred pages, as can appeal books, the cost of this step can be quite high.

After you've filed your appeal book and received the transcripts, you must deliver a copy to the respondent.

Filing your factum

You have 30 days from the time you filed your appeal record to file your factum. A factum, which iis your written argument as to why the appeal court should make the order you want. You can also explore the Justice Education Society's Court of Appeal BC Online Help Guide, and in particular the pages on preparing specific appeal-related documents. This online resource uses plain language, and links to the Court of Appeal’s own updated document examples, templates, and instructions.

Factums contain standard elements:

1. Cover page
2. Table of contents: Listing each part and its page number.
3. Chronology: A brief, point-form list or table of critical events that are relevant to the issue on appeal.
4. Opening statement: A concise, one-page statement identifying yourself (as appellant or respondent), the lower court being appealed from, the result of the case before, and the essential point of the appeal (why it should succeed or fail).
5. Part 1 - Statement of facts: A statement of the facts of the appeal, as the trial judge found them to be.
6. Part 2 - Errors in judgment: A statement as to how you think the trial judge erred in law.
7. Part 3 - Argument: Your formal argument, about the law, how the judge applied the law to the facts, and how the judge should have applied the law.
8. Part 4 - Nature of order sought: A statement of the order you'd like the Court of Appeal to make.
9. Appendices: List of authorities: A list of the case law you rely on in your argument.
10. Appendices: Enactments: A list of the acts and regulations you rely on in your argument.

Again, factums are extremely formal, and there are all sorts of rules you must follow in preparing your factum, among which are the following:

• there is a limit on how many pages long your factum can be,
• the cover of your factum must be in a buff or beige colour (the respondent's must be green),
• all pages in your factum except for the index have to be printed on the back side of the page (so that when your factum is open, the text appears on the left page and the right page is blank),
• each line of your factum must be numbered, and
• each page must be numbered.

Like I said, factums are extremely formal.

Make a total of six copies of your factum and file them in court. The court will keep four copies, you will keep one, and you must serve the sixth on the respondent.

The respondent's factum

The respondent has 30 days from their receipt of your factum to file and serve you with their own factum. The respondent's factum is their argument against your position, and will also contain any additional arguments the respondent wants to make in support of their cross appeal.

Filing the Notice of Hearing

When an appeal is ready for hearing, you must file and serve a Form 5 Notice of Hearing of Appeal under Rule 33 of the Court of Appeal Rules.

Preparing your book of authorities

Under Rule 27 of the Court of Appeal Rules, you must prepare a book of authorities. This is a binder containing all of the case law and statutes that you are relying on in the argument you've set out in your factum. You should arrange the cases in the order that you set them out in the list of authorities in your factum. Make five copies. One copy is for you, another is for the respondent, and the court will get the remaining three. You must file these three copies with the registry at least three days before the hearing of the appeal.

More information

For more information on process, see:

1. Justice Education Society's Court of Appeal BC Online Help Guide, with specific guides for both the appellant and the respondent, as well as flowcharts, and links to forms
2. The CanLII Manual to British Columbia Civil Litigation, with a good breakdown of the Court of Appeal Rules
3. The Court of Appeal’s website, in particular:
   1. New Court Forms, Completion Instructions and Templates information page, with lots of official links, document templates, and lists of forms.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Justin 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."

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 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.

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."

(1) Agreement, or (2) the giving of permission for a thing to happen or not happen.

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."

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."

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."

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

In law, an order of a court cancelling or changing an earlier order of the court. See "order."

The party who brings an appeal of a lower court's decision. See also "appeal" and "respondent."

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."

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

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."

(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.

In law, an order sought by a party to a court proceeding or application, usually as described in their pleadings. Where more than one order or type of order is sought, each order sought is called a "head of relief." See "action," "application" and "pleadings."

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

In law, to formally deliver documents to a person in a manner that complies with the rules of court. Service may be ordinary (mailed or delivered to a litigant's address for service), personal (hand-delivered to a person), or substituted (performed in a way other than the rules normally require). See "address for delivery," "ordinary service," "personal service" and "substituted service."

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, 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."

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 a fact exists or a fact supposed to exist does not, making the judge's decision void or voidable. See "appeal."

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.

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

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.

Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

A legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief."

A legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, 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 the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

In law, (1) a written argument, or (2) a memorandum of law. A brief is usually presented to a judge as a summary of an argument or the law on a particular issue. Curiously, briefs are rarely brief.

The law as established and developed by the decisions made in each court proceeding. See "common law."

A kind of legislation that provides supplemental rules for a particular act. Regulations are created and amended by the government, not by the legislature, and as a result the legislature has no say in how or what regulations are imposed by government. See "act."

A legal document required by the Supreme Court Family Rules that fixes the date for the hearing of a Petition. See "hearing" and "Petition."

A binder containg the case law that a party will rely on in making a legal argument. Each case is usually separated by numbered tabs to make it as easy as possible to find a particular case.