Family Law Appeals
This guide is intended to provide some helpful information about family law appeals in the Court of Appeal for Ontario. Please note that court administrative staff cannot provide legal advice or complete the documents to be filed on your appeal for you. For more information, please see “How to Proceed with a Civil Appeal”, the Rules of Civil Procedure, and the Family Law Rules, O Reg 114/99.
In general, the answer depends on 3 things:
There are some exceptions to the general rules above.
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. Note that there are special rules for appeals from the Ontario Court of Justice to the Superior Court of Justice. 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.
Do I need leave to appeal to the Court of Appeal?
In some cases, you need “leave to appeal”. This means that you have 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. 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 case and the court will consider both questions at the same time. For example, in an appeal of a temporary order made under the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA), and brought to the Divisional Court as a temporary order of a Superior Court Justice the motion for leave to appeal is combined with the notice of appeal and both are heard together.
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:
Timelines are shorter for child protection matters:
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 Crown Wardship No Access Orders are specially managed by the court and you will likely be contacted to schedule a conference over the telephone with 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.
The Court of Appeal office may also be contacted through the following:
Court of Appeal for Ontario
Telephone number: (416) 327-5020