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Family Law Appeals
This guide is intended to provide some
helpful information about family law appeals in the Court of Appeal for
Ontario. This guide does not constitute legal advice and it may not include
information that applies to your particular case. Please note that court
staff cannot provide legal advice or complete your court documents for you.
For more information, please see:
- How to Proceed with a
Civil Appeal
- The Courts of Justice Act, R.S.O. 1990, c.
C.43
("CJA")
- The Rules of Civil
Procedure, R.R.O.
1990, Reg. 194
- The Family Law Rules, O. Reg. 114/99
- The
applicable family law legislation, such as the Family Law Act, R.S.O. 1990, c. F.3, Children's Law Reform
Act,
R.S.O. 1990, c. C.12 ("CLRA"), and Child, Youth and Family Services Act,
2017, S.O.
2017, c. 14, Sched. 1 ("CYFSA")
To which court do I appeal?
The chart below sets out some *general* rules
that apply in *most* cases. Exceptions apply. Please see the applicable legislation
and rules of court for a *complete* guide.
Which
court made the original order? |
Interim
or Final order? |
What legislation
was the order made under? |
First
appeal:
Which Ontario court? |
Second
appeal:
Which Ontario court? |
Ontario Court of Justice |
Any |
Any, unless otherwise specified
in the legislation (for example, see row below regarding
jurisdiction/extra-provincial matters)
|
Superior Court of Justice
See legislation under which original
order was made
|
Court of Appeal
(leave is required, unless the
original order was made under Part V or VIII of CYFSA (child
protection, adoption, and openness matters))
CJA: ss.
6(1.1) and 6(1.0.1)
|
Sections 22, 41, 42, or 43 or the
Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial
matters)
|
Court of Appeal
CLRA: s. 73(2) |
|
Superior Court of
Justice - Family Court branch
(25 locations) |
Interim
|
Most
|
Divisional Court
(leave is required)
CJA: s.
19(1)(b) |
Court of Appeal
(leave is required)
CJA: s.
6(1)(a)
|
Final (monetary only, <$50K)
|
Most
|
Divisional Court
CJA: s.
19(1.2)
|
Court of Appeal
(leave is required)
CJA: s.
6(1)(a)
|
Final (other than monetary <$50K)
|
Provincial legislation only
|
Divisional Court
CJA: s.
19(1)(a.1)
|
Court of Appeal
(leave is required, unless the
original order was made under Part V or VIII of CYFSA (child
protection, adoption, and openness matters))
CJA: s.
6(1)(a)
|
Final (other than monetary <$50K)
|
Federal legislation (regardless
of whether there are also orders made under provincial legislation)
|
Court of Appeal
CJA: ss.
6(1)(b) and 6(2)
|
|
|
Any |
Sections 22, 41, 42, or 43 or the
Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial
matters)
|
Court of Appeal
CLRA: s. 73(2) |
|
Superior Court of
Justice - regular branch |
Interim
|
Most
|
Divisional Court
(leave is required)
CJA: s.
19(1)(b)
|
Court of Appeal
(leave is required)
CJA: s. 6(1)(a) |
Final (monetary only, <$50K)
|
Most
|
Divisional Court
CJA: s.
19(1.2)
|
Court of Appeal
(leave is required)
CJA: s.
6(1)(a)
|
Final (other than monetary <$50K)
|
Most |
Court of Appeal
CJA: ss.
6(1)(b) and 6(2)
|
|
|
Any |
Sections 22, 41, 42, or 43 or the
Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial
matters)
|
Court of Appeal
CLRA: s.
73(2) |
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Appeals from the Ontario Court of Justice
should be made to the Superior Court of Justice, unless it is provided in
legislation that it should go to another Court.[1] Note that
there are special rules for appeals from the Ontario Court of Justice to the
Superior Court of Justice.[2] Also, you
should look at the legislation under which the order was made to see if there
are special rules that apply to your type of appeal.[3]
Some statutes also have additional
restrictions on appeals. For example, under the Divorce Act,
there are two specific restrictions on the appeal process:
- No appeal lies from a judgment granting
a divorce on or after the day on which the divorce takes effect;[4]
- No appeal lies from an order made under
the Divorce Act more than 30 days after
the day on which the order was made.[5]
Do I need leave to appeal to the Court of
Appeal?
In some cases, you need "leave to
appeal". This means that you need the court's permission to appeal. To
ask for permission, you need to make a motion to the court explaining why
they should hear your appeal.
If your appeal is to the Court of Appeal or
the Divisional Court, see Rules 61, 62 and 63 of the Rules of Civil
Procedure and Rule 38 of the Family Law Rules.
Where leave to appeal is needed, you must:
- Serve a notice
of motion for leave to appeal within 15 days after the
date of the order you want to appeal, and
- File
the notice of motion within 5 days of service, unless otherwise provided
by statute.
Motions for leave to appeal to the Court of
Appeal are in writing.[6] A motion
record, factum and transcripts (if any), are needed for the motion.
If the court gives you leave to appeal,
a notice of appeal must then be served and filed
within seven days.
In certain cases, the motion for leave to
appeal will be heard together with the appeal. This means that you will
present your motion for leave to appeal at the same time that you present
your appeal and the court will consider both questions at the same
time. For example, in an appeal of a temporary order made under the CYFSA,
and brought to the Divisional Court as a temporary order of a Superior Court
Justice[7] the motion for
leave to appeal is combined with the notice of appeal and both are heard
together.[8]
How do I start a family law appeal to the
Court of Appeal?
Please see: "How to Proceed with a
Civil Appeal".
The general rule is:[9]
- If no transcript of oral evidence is
required, the appellant must perfect the appeal within 30 days after
filing the notice of appeal;
- If a transcript of oral evidence is
required, the appellant must perfect the appeal within 60 days after
receiving notice that the transcript of oral evidence has been
transcribed.
Timelines are shorter for child protection
matters:[10]
- If no transcript of oral evidence is
required, the appellant must perfect the appeal within 14 days after
filing the notice of appeal;
- If a transcript of oral evidence is
required, the appellant must perfect the appeal within 30 days after
receiving notice that the transcript of oral evidence has been
transcribed.
When will my family law appeal be heard?
Family law appeals are heard more quickly,
usually within 3-4 months from the date on which all the necessary materials
have been filed with the court.
Appeals of extended society care orders, with
no access, are specially managed by the court. You will likely be contacted
to schedule a conference over the telephone with a judge if you have not
filed all the necessary materials for your appeal with the court within 14
days.
What about fresh evidence?
The general rule is that you must rely on the
same facts on appeal that you did at trial.
But, if "fresh" evidence — evidence that
existed at the time of trial but you didn't know about — or "new" evidence —
evidence based on new developments since the trial — concerns the child's
best interests, the court may want to hear about it. You may try to
introduce fresh or new evidence by making a motion.[11]
The Court of Appeal office may also be
contacted through the following:
Court of Appeal for Ontario
Osgoode Hall
130 Queen Street West
Toronto, Ontario
M5H 2N5
Telephone number: (416) 327-5020
Toll Free at 1-855-718-1756
Facsimile number: (416) 327-5032
- See the Courts
of Justice Act, s. 40.
- See the Family
Law Rules, rules 38(5) to (45).
- See, for example,
s. 121(3) of the Child, Youth and Family Services Act, 2017,
S.O. 2017, c. 14, Sched. 1, which sets out specific rules about the stay
of the order under appeal from the Ontario Court of Justice to the
Superior Court of Justice.
- See the Divorce
Act, s. 21(2).
- See the Divorce
Act, s. 21(3).
- See the Rules
of Civil Procedure, r. 61.03.1.
- See the Courts
of Justice Act, s. 19(1)(b).
- See the Family
Law Rules, r. 38(3).
- See the Courts
of Justice Act, s. 61.09(1).
- See the Family
Law Rules, r. 38(2).
- Motions for fresh
evidence are brought pursuant to rule 61.16(2), which provides
that, "[a] motion under clause 134(4)(b) of the Courts of Justice
Act (motion to receive further evidence) shall be made to the panel
hearing the appeal." Section 134(4)(b) provides
that, "[u]nless otherwise provided, a court to which an appeal is taken
may, in a proper case, receive further evidence by affidavit, transcript
of oral examination, oral examination before the court or in such other
manner as the court directs ... to enable the court to determine the
appeal."
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