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.

Which court?

In general, the answer depends on 3 things:

  1. Which court made the original order?
  2. What type of order was made?
  3. Is this your first or second appeal?

Which court made the original order?

What type of order was made?

First appeal:
Which Ontario court?

Second appeal:
Which Ontario court?

Ontario Court of Justice

Almost all (see below)

Superior Court of Justice

Court of Appeal

Superior Court of Justice -family branch

Almost all (see below)

Divisional Court

Court of Appeal

Superior Court of Justice -regular branch

Final order over $50,000

Court of Appeal

None

 

Final order under $50,000

Divisional Court

Court of Appeal (only with leave)

 

Temporary order

Divisional Court (only with leave)

Court of Appeal (only with leave)

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.[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:

  1. No appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect;[4]
  2. 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 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.[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 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[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] 

  1. If no transcript of oral evidence is required, the appellant shall perfect the appeal within 30 days after filing the notice of appeal;
  2. If a transcript of oral evidence is required, the appellant shall 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]

  1. If no transcript of oral evidence is required, the appellant shall perfect the appeal within 14 days after filing the notice of appeal;
  2. If a transcript of oral evidence is required, the appellant shall perfect the appeal within 30 days after receiving notice that the transcript of oral evidence has been transcribed.
  3. 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 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.[11]

  1. Courts of Justice Act, R.S.O. 1990, c. C. 43
  2. Rules of Civil Procedure, R.R.O. 1990, Reg. 194
  3. Family Law Rules, O. Reg. 114/99
  4. Practice Direction Concerning Civil Appeals in the Court of Appeal (found on the Court of Appeal website: http://www.ontariocourts.ca/coa/en/notices/pd/civil.htm)

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


  1. See the Courts of Justice Act, s. 40. 
  2. See the Family Law Rules, rules 38(5) to (45).
  3. See, for example, s. 69 of the Child and Family Services Act, R.S.O. 1990, c. C.11, 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.
  4. See the Divorce Act, s. 21(2).
  5. See the Divorce Act, s. 21(3).
  6. See the Rules of Civil Procedure, r. 61.03.1.
  7. See the Courts of Justice Act, s. 19(1)(b).
  8. See the Family Law Rules, r. 38(3).
  9. See the Courts of Justice Act, s.61.09(1).
  10. See the Family Law Rules, r. 38(2).
  11. 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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