How to Proceed with a Family Appeal

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:

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.

To which court do I appeal?
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)

 

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 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 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]

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

  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 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

************************

  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. 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.
  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.”
This website is maintained by the Judges' Library. Website Policies
to top