How to Proceed with a Family Appeal

This guide is intended to provide some helpful information specific to family law appeals in the Court of Appeal for Ontario. You must also read How to Proceed with a Civil Appeal. This guide is not legal advice. It is general information that may not apply to your case. Please note that court staff cannot provide legal advice or complete your court documents for you. For more detailed information, please see:

• 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 Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), 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”)

• Which court?
• Child protection timelines are shorter:
• When will my family law appeal be heard?
• What about fresh evidence?

Which court?

Not all family law cases can be appealed directly to the Court of Appeal for Ontario. The questions and chart below set out some general rules that apply in most cases. Exceptions apply.

To begin, look at the order you want to appeal:

1. Is the order only a monetary for an amount less than $50,000? If so, it does not lie to the Court of Appeal. Instead, the appeal lies to the Divisional Court: see CJA, s.19(1.2).
2. Is the order interim or temporary? If so, unless it is an order under Sections 22, 41, 42, or 43 or the Schedule to s. 46 of the CLRA (jurisdiction/extra-provincial matters), it does not lie to the Court of Appeal. Instead, the appeal lies to the Divisional Court with leave: see CJA, s. 19(1.2).
3. Next, you need to look at which court made the original order and under which legislation the order was made:

Note: under the Divorce Act, no appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect: s.21(2).

Child protection timelines are shorter:

See the Family Law Rules, r. 38(3) and the Courts of Justice Act, s. 19(1)(b).

1. If no transcript of oral evidence is required, the appellant must perfect the appeal within 14 days after filing the notice of appeal;
2. 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 of perfection (i.e., 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. This means that the appeal court will generally only hear the evidence that was before the trial court or motion judge.

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 to the panel who will hear your appeal.