Appealing Family Law Orders
When a family law order or interim order does not turn out the way you wanted, or fails to reflect your perception of the circumstances, this can be frustrating and disheartening. You may be wondering what rights you have to challenge the decision, including whether you can appeal the order. The following blog will consider when a family law order can be appealed, including how to initiate such an appeal.
Different Types of Family Law Orders
Final and Interim Orders
First, it is important to understand that there is a difference between a final order and an interim order.
A court can make a final order at the end of a trial, when both spouses agree to an order (called a final consent order), or when the spouses apply for divorce. Final orders aren’t always entirely final and can be changed when the facts or circumstances have changed. Changing an order is different than appealing it and is much more common, especially for orders involving children. Appealing an order is much more complicated.
An interim order means it is temporary (for a certain period of time). They are typically easier to change if your circumstances change. Interim orders don’t usually have an “expiry date”, but rather remain in force for as long as they are needed – which is typically until a final order is put in place. Sometimes, interim orders continue indefinitely because the parties never get a final order. However, if you’re dividing property or getting a divorce, you’ll need a final order.
Provincial Court and Supreme Court Orders
It is also important to note that family law orders may be pronounced in Provincial Court or in Supreme Court.
The Supreme Court of British Columbia has exclusive jurisdiction over all matters within the federal Divorce Act, all property-related matters, and any disputes arising relating to parentage. This means that if you want to get a divorce, divide property, or get a parentage order relating to a child conceived by assisted reproduction, you must go to the Supreme Court. Most family law issues, however, fall within the shared jurisdiction of both the Provincial Court and Supreme Court, including:
· Guardianship of children
· Parenting arrangements
· Child support and spousal support
· Contact orders
· Family law protection orders
· Relocation
For the above-listed matters, you may have a choice whether to resolve the issue at Provincial Court or Supreme Court.
Which court your order is from may affect whether or not it can be appealed, as well as how it can be appealed. For the purposes of this, there are four categories of orders: (1) Provincial Court interim orders; (2) Provincial Court final orders; (3) Supreme Court interim orders; and (4) Supreme Court final orders.
Which Orders Can be Appealed?
Provincial Court Interim Orders
Family law interim orders in Provincial Court cannot be appealed. However, you can apply to change or vary the order if the facts or circumstances have changed. You can do so by going back to the Provincial Court. You can also go to trial, and the judge will make a new decision and issue a final order.
Provincial Court Final Orders
Final orders from Provincial Court can be appealed. If you have a final order from Provincial Court, you must apply to the Supreme Court to appeal the order. This is because only a higher court can change the order of a lower court.
Supreme Court Interim Orders
Interim orders from the Supreme Court can be appealed. If the order was made by a Supreme Court master (not a judge), it can be appealed to a Supreme Court judge. If the order was made by a Supreme Court judge, you must appeal it to the British Columbia Court of Appeal.
Supreme Court Final Orders
Final orders from the Supreme Court can be appealed. If you have a final order from the Supreme Court, you must apply to the Court of Appeal to appeal the order. As stated above, this is because only a higher court can change the order of a lower court.
How Do I Appeal an Order?
Appealing an order is complex, time-consuming, and can be expensive if you hire a lawyer. If you want to file an appeal, however, it is highly recommended that you get a lawyer. Appeals are difficult, and there are often strict timelines for how quickly the appeal must be filed.
In order to successfully appeal your order and have the higher court change the order, the higher court must agree that the lower court either:
(a) Made a mistake in the law; or
(b) Completely misunderstood the evidence presented.
Keep in mind that appeals are difficult, and a higher court must find such a mistake or misunderstanding of evidence to change the order. This can be a high bar.
Leave to Appeal Family Law Act Orders
It is also important to understand which legislation was applied by the court making the order: the British Columbia Family Law Act or the federal Divorce Act. The federal Divorce Act applies only to married couples, while the British Columbia Family Law Act applies to both married and unmarried (often called “common law”) couples. Disputes between unmarried couples are therefore always resolved under the British Columbia Family Law Act, while disputes between married couples may be resolved under either.
If your order was made under the British Columbia Family Law Act, you can only appeal the order if you get leave to appeal. This means getting permission to appeal from the higher court. An order made under the federal Divorce Act can be appealed directly without getting leave to appeal.
It is important to keep in mind that appeals are complex, time-consuming, and costly, and you are never guaranteed a different result. However, if you believe you have a ground to appeal a decision, you should get in touch with a lawyer to have your case assessed and to get more information about your options moving forward. Our knowledgeable, empathetic, and driven team of Vancouver family lawyers is ready to help you navigate your appeal to any level of court.
Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.
