Setting the Record Straight: Myths in Appealing Family Law Orders

You’ve been in court, and the judge makes a decision you don’t agree with or don’t like.  What can you do?  You’ve heard of appealing, so what does that mean?  Appealing matters in family law can be complex but can also provide a remedy to you in the event you have reached the standard of review for appellate intervention.  It is highly recommended to seek legal advice before you appeal.

Here are some myths associated with appeals:

Myth 1:  It’s a second chance.

Appealing a ruling in family law is not a second chance to re-argue your case.  Unless one of the exceptions apply to your case, you normally are not allowed to bring new evidence to the court.  The appeal court is not the trier of fact, meaning it is not a new trial where you take the stand and give evidence.  Appellate courts are bound to review the previous hearing or trial with a specific and narrow viewpoint as to whether the trial judge made an error of law or principle, an unreasonable decision or misapprehended evidence (in cases of mixed fact and law).  Because of the heavily fact driven area that most family law cases are, judges are given a high degree of deference to their decisions, and even if the appeal court does not agree with the decision, it doesn’t mean it will overturn the decision. However, if the judge made a palpable and overriding error in a question of mixed fact and law, then your appeal will be successful.

Myth 2:  The Supreme Court of Canada must hear the case.

Litigants often believe that they can keep appealing until the Supreme Court of Canada hears their case.  This is not accurate.  Once you have exhausted the appeal level at the provincial level, you do not have an automatic right to go to the Supreme Court of Canada.  You must first gain permission to do so by the Supreme Court of Canada.  Family law cases are not heard as often in the Supreme Court as other types of law (as for example, criminal).  The Court will review your application and decide whether to even allow you to proceed with it or not based on a specific test.   Appealing to the Supreme Court of Canada for family law matters can be extraordinarily expensive and time-consuming, and there may be another way to remedy your family law case rather than pursuing this avenue.  However, if the matter is of national importance, for instance, then the Supreme Court may make time to hear your case.

Myth 3: It’s always available later to appeal.

There are strict deadlines when appealing your order or judgment.  Part 14 of the Alberta Rules of Court govern the timelines.  If you want to appeal an order made in divorce proceedings, you must do so within 30 days of the date the order was made, unless you receive special permission from an appeal judge to file later.   If your matter involves parenting, custody and access, or support of a child, then your matter will be fast-tracked.

Appealing an Order or Judgment can potentially overturn a lower court’s decision in your family matter, however, it is important to seek legal advice if you can, so you know the likelihood of success, and don’t miss any deadlines.  If you would like to speak to an experienced appellate counsel, please see our appellate lawyers, and contact us for more information.