The Calgary family lawyer team at MacLean family law often are asked by clients “can interim orders be appealed?” Our Calgary family lawyer members explain that interim orders are intended to be “rough justice: awards often made on incomplete evidence and often done with time pressure to get interim relief in place that allows parties and their children to exist until trial. Our top rated Calgary family lawyer founder and associates also know that interim orders are crucial in setting the litigation stage and in some cases our Calgary family lawyers know an appeal of an interim order may be necessary and required.
Meet with us immediately in downtown Calgary at Banker’s Hall if you are involved in or have questions concerning a Calgary family law appeal. You can call us today at 403 444 5503 .
Interim orders in family cases rarely deal with final decisions on issues of child custody, parenting time, child support and spousal support. Our Calgary family lawyer group tell parties that getting an early trial date and preparing for their Calgary family trial is more productive than an interim family appeal which may take months to be heard. However, where interim orders might prevent a proper resolution at trial because a final order has been made or where prejudice will occur to one party before the trial is heard a Calgary family law appeal may of an interim order may be necessary. When this situation occurs it pays to hire the best Calgary family lawyer like Lorne N. MacLean, QC founder of Western Canada’s largest family law firm.
Calgary Family Lawyers
The Calgary family lawyer team and family appeal lawyers at MacLean Law are led by Lorne N. MacLean QC. Mr. MacLean has regularly conducted appeals in the BC Court of Appeal and in the Supreme Court of Canada and was counsel for Ms. Young in the famous child custody case of Young v. Young and for Mr. Leskun in the precedent setting spousal support case of Leskun v. Leskun.
Recent Alberta Appeal Court Decision Points Out Interim Orders Are Not For Final Decisions
In the recent Alberta Court of Appeal case of Kerslake v Kerslake, 2016 ABCA 150 (CanLII), a Chambers judge was found to have exceeded his authority in making a final order. Our Calgary family lawyers extract the key parts of the decision. Interim orders are always subject to being replaced at the time of trial when more complete evidence is presented, witnesses are examined under oath and they are cross examined and expert evidence on contested issues can be assessed. Here is a nice summary of how interim orders work in Alberta:
[3] Normally it is inefficient to appeal interim matrimonial orders, for the simple reason that they are only “interim”. All interim orders are subject to review and adjustment at trial: MacMinn v MacMinn (1995), 1995 CanLII 6247 (AB CA), 174 AR 261, 17 RFL (4th) 88 (CA); Hartley v Del Pero, 2010 ABCA 182 (CanLII) at para. 9, 27 Alta LR (5th) 248, 487 AR 248. That adjustment extends to issues like retroactivity, the commencement day for support, and the duration of support. The appropriate remedy for someone dissatisfied with an interim family order is therefore generally to advance to trial, not to appeal.
[4] The present proceeding is complicated because the chambers judge purported to make a final order:
. . . I’m going to cut this short in terms of the retroactive support, I’m going to direct that the retroactive support encompasses January ’14 to June ’14, under the terms of Justice Jerke’s order, . . .
So, it’s six times 1623, whatever the math gives us for those calculations, that’s the retroactive. Done, finished, like it or not, it’s done, you’re not litigating that any more unless you go to the Court of Appeal and let them sort it out, that’s it. And my math says it’s about around 15,000, but you’ll have to do the exact calculations. That’s the retroactivity. . . .
These reasons inferentially found their way into the formal order, which recites:
AND UPON the application of the Plaintiff for a final determination regarding retro-active child and spousal support;
The order then directs that retroactive support will “only” be for the period after January 1, 2014.
[5] It was not open to the chambers judge to purport to make a final order: Neighbour v Neighbour, 2014 ABCA 62 (CanLII) at para. 12; Olson v Olson, 2014 ABCA 15 (CanLII) at para. 2, 37 RFL (7th) 414. In effect, the chambers judge purported to grant summary judgment on the issue of retroactivity, whereas the summary judgment procedure is not available for most family law matters: R. 12.48. In any event, the test for summary judgment is different from the test for interim matrimonial relief. Summary judgment requires that there be “no merit” to the competing position, which essentially amounts to there being no genuine issue requiring a trial. That test could not be met on this record, even if the summary judgment procedure was available.
[6] The respondent agrees the whole matter should go to trial. The appeal is therefore allowed. The support provisions of the order are interim only. The issues of retroactivity and the appropriate commencement date for and amount of support will be decided at the summary trial, along with the other issues.
