How to Appeal an Order in Provincial Court and Supreme Court
What can you do if a judge in Provincial Court or Supreme Court makes an order that you think is incorrect?
In BC family law, you may be able to challenge a court order by appeal to a higher court. An appeal may be possible if you think that the judge or master who made your order made an error, either when assessing the facts of your case, or when applying the law to the facts of your case. You have limited time to appeal an order after it has been made, and therefore you should seek legal advice, quickly.
If you want to appeal an order, it is important to know that you cannot present additional or new evidence about your case in the appeal. An appellate court will generally defer to a lower court’s assessment of the facts of a case. Appeals therefore typically relate to the lower court’s application of the law, and for that reason are complex. You should speak with a lawyer before appealing an order.
In Provincial Court you cannot appeal an interim order. An interim order is any order made before trial. To cancel or change an interim order you must obtain a final order at trial, where the credibility of the parties can be tested through in-person testimony.
Although the BC Family Law Act provides that only final decisions of the Provincial Court can be appealed to the Supreme Court, an application to review an interim provincial court order can still be brought under the Judicial Review Procedure Act. On an application for juridical review, the viewing court performs a supervisory role. The reviewing court will assess whether an interim decision made in Provincial Court was reasonable and without any fundamental flaws in its overarching logic. The interim order must also be justified considering the legal and factual context, including the governing statutory scheme. Because judges must exercise their discretion when making interim decisions relating to parenting arrangements, interim decisions in Provincial Court are given deference on judicial review. Moreover, since the Family Law Act prevents an appeal of an interim Provincial Court order, greater deference is used by the court on judicial review.
If you want to appeal an order other than an interim order made in Provincial Court, you must apply to Supreme Court. To do so, you must file a Notice of Appeal within 40 days of the decision. Your Notice of Appeal must include the following information:
- Confirmation that you are bringing your appeal under section 233 of the BC Family Law Act.
- The date on which the order that you wish to appeal was made.
- The name of the judge who made the order.
- The reason(s) why you are appealing the Provincial Court order.
In Supreme Court you can appeal an interim order made by a master by appearing before a Supreme Court Judge. You must file a Notice of Appeal. Any order made by a Supreme Court judge, whether on an interim basis or at trial, can only be appealed by applying to the BC Court of Appeal. The Court of Appeal performs a gate-keeper function for appeals of orders made under the BC Family Law Act, and you must first obtain leave to appeal. The BC Family Law Act applies to unmarried spouses and property division, which are areas the law that are not covered by Federal Legislation under the Divorce Act. If you are married, you may be able to appeal directly to the Court of Appeal without seeking leave.
To appeal a decision to the BC Court of Appeal, you must file a Notice of Appeal, in Form 7 of the Court of Appeal forms, in the registry of the Court of Appeal and serve it on the other side.