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Appeal Process Ontario Family Law

Wednesday, April 15, 2015 - Court - Vincent - Family Court - Representing yourself

The Notice of Appeal is used by a party to appeal against an order or to apply for leave to appeal against an order.
The purpose of an appeal is to correct an error, unfairness or wrongful exercise of judicial discretion. Appeals ensure public confidence in the administration of justice and, in appropriate cases, clarify and develop the law and help maintain a high standard of court orders.

Family law Judges in the Canadian judicial system make horrible court orders and judgements/judgments daily. These court orders, judgement/s, final court orders sometimes have nothing to do with the LAW but the way a litigant approached the court, the way you dressed , the way you argued with the judge, your demeanor, or you ran into a judge that is egotistical or simply outright rude and biased. Sometimes these court orders are based upon previous relationships they have had with another person. Whatever judge you encounter in family court, you may challenge his or her orders by an appeal. Every litigant however, is cautioned that the appeal process to the appellate court is very complicated, costly, sometimes very frustrating not to mention that each litigant has to argue the LAW to win the appeal.

Ontario Family Law Appeals
What is an appeal? 
If you don't agree with a decision made by a judge, you can dispute the decision by making an appeal to another court.

What are the limitations on an appeal?
The appeals court's primary concern is whether the judge made an error of law in deciding your case. The appeals court will normally not allow new evidence to be heard.

Do I need permission to appeal?
It depends on what type of decision you are appealing. If the decision is a final decision - that is, a decision that finally disposes of your rights - then no permission is needed. If the decision is a temporary or interim decision - then you do need permission to appeal.

What are the steps for an appeal from a final order?
1. You serve a notice of appeal and a certificate respecting evidence, within 30 days of the date of the order from which you are appealing.

2. Within 10 days, you must file the notice of appeal with the court.

3. The other side must serve a certificate respecting evidence within 15 days after you serve yours. Alternatively, you and the other side can agree on what evidence will be used.

4. You must serve proof that you have ordered any required transcripts within 30 days after filing the notice of appeal.

5. If the other side wants to appeal anything, they must serve a notice of cross-appeal with 15 days after you serve the notice of appeal, and file this with the court within 10 days after serving it.

6. You must serve and file 3 copies of your appeal book and factum, 1 copy of your exhibit book, an electronic version of your factum, and a certificate of perfection within 30 days after filing of the notice of appeal. If you require a transcript for your appeal, you have until 60 days after receiving notice that the transcript is ready to serve and file your materials, and must also serve and file a copy of the transcript.

7. The other side must serve and file three copies of their factum, and an electronic version of their factum, within 60 days after serve of your materials.

8. At least 60 days before the hearning, you and the other side must serve and file three copies of a compenium of evidence and exhibits.

"How do I appeal from a temporary order?"
You need to make a motion to obtain permission from the court to appeal. Generally, such permission is not granted, unless the matter is of public importance or there have been conflicting decisions on the matter dealt with in your case.

"What happens to the original decision while it is being appealed?"
Normally, if it is an order for child support or spousal support, you must continue to pay this. Other orders normally are not effective until the issue is decided by the appeals court.

"What does a court do on an appeal?"
The standard for an appeal is very high. Generally, an appeals court won't reverse what the original judge did unless there was an error of law, or a significant misapprehension of the evidence.


Making an Appeal in Ontario 

When making a family law appeal to the Divisional Court or the Court of Appeal in Ontario, the process and procedure are governed by Rules 61, 62, and 63 of the Rules of Civil Procedure, subject to some modifications. A respondent may also appeal the same order in the same hearing.

Special procedures exist for appeals under the Child and Family Services Act.

If appealing a final order made in the Ontario Court of Justice to the Superior Court of Justice, the appellant must serve a Notice of Appeal (Form 38) on the other side within 30 days of the of the order or decision. The Notice must then be filed with the court within 10 days.

The only document added to the continuing record in this type of appeal is the Notice and any order of the appeal court. The Notice must contain the legal grounds for making the appeal. This is an area where assistance from a lawyer or a family law professional can be especially useful, to properly identify the legal basis for an appeal, and express it using the appropriate terminology.


The appeal is a request to a higher court (Ontario Court of Appeal or Divisional Court in Ontario) to correct the decision of the lower court. Witnesses almost never testify during the hearing of an appeal and the appellate court renders a decision based on the transcript of evidence from the lower court. An appeal is commenced by a notice of appeal that must be delivered to the respondent and filed with the appellate court within time specified by the rules (time varies).

Notice of appeal is an essential document that must be prepared by the appellant (a party appealing the decision). The notice must list of the alleged mistakes made by the trial judge and state the grounds for the appeal. The notice of appeal is usually prepared by a lawyer having experience of representing people in appellate courts.

Before the hearing of the appeal can be scheduled the appellant must "perfect the appeal" by producing appeal record within time specified by the rules of the court. The appeal record typically includes an appeal book, transcript of oral evidence during trial, exhibits, factum (written legal argument of the appellant including the references to the legislation and judicial decisions) and other documents.

The party defending the appeal is called a respondent. The respondent must also prepare and produce an appeal record, including a respondent's factum within specified deadline.

The commencement of the appeal may "stay" the judgment of the lawyer court (prevent the judgment from being enforced). However, in certain situation, a party is required to make a motion to stay the judgment. Please contact a lawyer having experience with handling appeals to get legal advice pertinent to your particular situation.

The hearing of the appeal tends to be very brief: 30 minutes to four hours depending on the complexity of the appeal. The court sometimes may schedule more time if necessary. Appeals are normally heard by a panel of one to three judges and, even if one judge disagrees, the decision of the majority of the judges prevails.

The parties (appellant and respondent) have right to attend the hearing of the appeal. However, the parties do not have right to speak to the judge unless they are self-represented. The hearing of the appeal is a very technical process and it is a good idea to secure legal representation to prepare the appeal record and to attend the hearing of the appeal.


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