Appeals

An appeal is a review by a higher court of a decision made by a lower court. In family law, most appeals go from the trial court to the provincial Court of Appeal. An appeal is not a new trial — you cannot present new evidence or re-argue the facts. The appeal court reviews the lower court's decision to determine whether the judge made a legal error, applied the wrong legal test, or made a decision that was clearly unreasonable. Appeals are expensive, time-consuming, and have a high threshold for success.

To succeed on appeal, you must show that the trial judge made an error of law (applied the wrong legal principle), an error of fact (made a finding of fact that was clearly wrong and not supported by the evidence), or an error in the exercise of discretion (made a decision that was so unreasonable that no reasonable judge could have made it). Simply disagreeing with the outcome is not a ground for appeal. The appeal court gives significant deference to the trial judge's findings of fact and credibility assessments.

Appeals must be filed within strict time limits — typically 30 days from the date of the order being appealed, though this varies by province and the type of order. Missing the deadline can be fatal to your appeal. If you miss the deadline, you can apply for an extension, but you must show a good reason for the delay and that the appeal has merit. Do not wait — if you are considering an appeal, consult a lawyer immediately after receiving the decision.

Filing an appeal does not automatically stop the order from taking effect. If you want to pause the order while the appeal is heard, you must apply for a stay of the order. A stay is not automatic — you must show that the appeal raises a serious issue, that you would suffer irreparable harm if the order is not stayed, and that the balance of convenience favours a stay. Courts are reluctant to stay parenting orders because stability is important for children. Financial orders are more commonly stayed.

An appeal begins with filing a Notice of Appeal within the time limit. You then order the transcript of the trial proceedings (which can take months and is expensive). Both parties file written factums — detailed legal arguments. The appeal court then schedules an oral hearing, which may be months away. At the hearing, each party makes oral submissions. The appeal court may uphold the decision, vary it, or send the matter back for a new trial. The whole process can take one to two years.

Before deciding to appeal, get an honest assessment from a family law lawyer. Consider: Is there a genuine legal error, or do you just disagree with the outcome? Can you afford the cost of an appeal (transcripts, legal fees, and court costs can easily exceed $20,000)? How long will the appeal take, and what is the impact on your children and your life? Is there a better way to address the problem — for example, a motion to vary based on changed circumstances? Appeals are rarely the right answer. Consult a lawyer before proceeding.