How Do I Appeal a Provincial Court Decision?
Under section 233(1) of the Family Law Act, only final decisions of the Provincial Court can be appealed. Appeals of final decisions of that court are made to the Supreme Court. Interim decisions of the Provincial Court can only be challenged by a judicial review under the aptly named Judicial Review Procedure Act. This information is about appeals to the Supreme Court.
|Form F80||Notice of Appeal||HTML|
Making an appeal to the Supreme Court
To appeal a decision, you must file a form called a Notice of Appeal in Form F80 within 40 days of the decision. Appeals from the Provincial Court are governed by Rule 18-3 of the Supreme Court Family Rules. This form is a lot more complex than the forms you've used in the Provincial Court. In in the form you must indicate:
- when the order you are appealing was made,
- the name of the judge who made the order,
- that you are bringing your appeal pursuant to section 233 of the Family Law Act, and
- the reason or reasons why you are bringing the appeal.
Once you've filled out your Notice of Appeal, you must file it in the registry of the Supreme Court. The Supreme Court will charge you a fee to do this. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your new court proceeding. You must then serve the notice on the other person by personal service, and file another copy of the notice in the Provincial Court registry where the order was made
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. You must have a proper legal reason for bringing the appeal and show that the judge made an error in their findings of fact or an error in their findings of law.
In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact. Because appeal courts do 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 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
After the other side has been served with your Notice of Appeal, they will have seven days to file a Notice of Interest in Form F77. This form is used to acknowledge your appeal.
Normally you would have to apply to the court for some directions about how your appeal will be conducted. However, because your appeal is about a family law problem, the directions for your appeal are set out in the standard set of directions in Supreme Court Family Practice Direction 10, which is available on the court's website and at the court registry.
According to the Practice Direction, you must order both a transcript of the oral evidence given at the Provincial Court hearing that resulted in the decision you are appealing and a transcript of the judge's reasons for judgment. You must also file proof that you personally served the party within 30 days.
You must file a copy of the transcript with the court and serve it on the opposing party within 45 days of filing the Notice of Appeal. Within 30 days after filing your Notice of Appeal, you must provide proof that you have ordered these transcripts.
Within 45 days after filing the Notice of Appeal, the appellant must file a written outline setting out:
- the grounds of the appeal,
- the relief you are seeking, i.e. the order you want the court to make,
- the factual and legal basis on which you are seeking the relief, including any legal cases you intend to rely on.
You must serve the written outline on the other party at least 21 clear days before the date set for hearing the appeal.
A person who has filed a Notice of Interest must file a response and serve it on the appellant, no less than 14 clear days before the date set for hearing the appeal. The response must set out the factual and legal basis upon which you are opposing the appeal.
The appellant may, but does not have to, file a reply to the response and serve it at least 3 clear days before the date set for hearing the appeal.
Neither party is permitted to use new evidence that was not before the Provincial Court judge, unless they get the permission of the Supreme Court judge.
The cost of appeals
There are two fees that you'll have to pay to have your appeal heard. First, you'll have to pay a fee to file your Notice of Appeal. Second, and more expensively, you'll have to pay for the transcript of the Provincial Court hearing.
Transcripts are produced by private companies. A court reporter employed by the company retrieves the tape of the hearing from the court and painstakingly transcribes each and every word. JC Word, for example, a Vancouver firm, charges about $200 to $300 to transcribe a half-day hearing. On top of that, you'll have to pay for copies of your transcripts for the other side and the court.
Be warned! Appeals can be expensive.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Megan Ellis, QC, June 10, 2019.|
|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 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."
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 court proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or matters under the Divorce Act. See "judge" and "jurisdiction."
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."
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.
In 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 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 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."
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 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."
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; a courthouse.
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.
In law, the delivery of a legal document to a party in a court proceeding in a manner which complies with the rules of court, usually by physically handing the document to the party and verifying their identity. Personal service is usually required for the proper delivery of the pleadings that are used to start a proceeding to ensure that the party is given proper notice of the proceeding and the opportunity to mount a defence. See also "ordinary service," "pleadings," and "service, substituted."
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" and "evidence."
Facts 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."
A judge’s conclusion about the facts in a court proceeding, made after hearing all the evidence. See "decision" and "question of fact."
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. In contract law, an unintentional misunderstanding as to the nature of a term agreed to in a contract. See "bad faith" and "contract."
The 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 on the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence," and "jurisdiction."
In 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."
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 following the presentation of evidence, or to a written summary of argument.
The assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding.
A person licensed to practice law in a particular jurisdiction. 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.
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 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," "findings of fact," and "final judgment."
Evidence which establishes or tends to establish the truth of a fact; also, the conclusion of a logical argument. See "evidence" and "premises."
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 party who brings an appeal of a lower court's decision. See also "appeal" and "respondent."
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 method of calculating time under which the days for a legal deadline are counted by excluding the first day and the last day in the period. For example, a court order obtained on Monday that says that someone can apply to vary the order on "two clear days' notice" means that the soonest the person could apply is Thursday. See "business days" and "calendar days."
In law, an answer or rebuttal to a claim made or a defence raised by the other party to a court proceeding or legal dispute. See "action," "claim," "defence," and "rebut."