APPEALING A BC MASTER’S INTERIM ORDER IN BC SUPREME COURT
Our Surrey office just obtained a dismissal of an appeal of a BC Master’s family law Order that granted a surrey family law client a favourable shared equal time custody order and she feels the summary of the winning argument she used in court will help family law clients understand the test when someone appeals a master’s order. If you have an appeal issue don’t delay call us toll free now at 1 877 602 9900 to meet at any of our four offices in Vancouver, Surrey, Kelowna and Fort St John.
Interim orders in Supreme Court are made by either a Master or a Judge, although most interim orders tend to be made by Masters. An appeal of a Master’s order is heard by a Judge of the Supreme Court, while an appeal of a Judge’s order is heard by a Judge of the Court of Appeal. The procedure for appealing a Master’s order is much simpler than the procedure for appealing a Judge’s order.
A party who wishes to appeal a Master’s order must file and serve a Notice of Appeal within 14 days of the Master’s order. At the appeal hearing, the parties can only rely on the same evidence heard by the Master at the time of the original hearing, unless they give notice that they will be adducing new evidence.
Great deference is given to the Master who pronounced the order. As such, case law has demonstrated that the test to use when hearing an appeal of a Master’s order is to determine whether the Master was “clearly wrong” in making the order he or she did. There appears to be a competing line of authority that states when the order being appealed raises a question vital to a final issue at trial, then the “clearly wrong” test should not apply (and presumably, the matter should then be re-heard). However, it is not clear what constitutes “raising a question vital to a final issue at trial.” Generally speaking, the “clearly wrong” test has been widely accepted as the test to use when deciding the appeal of a Master’s order.
If the Judge determines the Master was not clearly wrong, then the appeal is dismissed and the Master’s order is upheld. If the Judge determines the Master was clearly wrong, then the Judge has the discretion to either hear the application de novo or simply to substitute the Master’s order with his or her own decision.
It is important to note that a Master’s order remains in force up until the moment a Judge determines that the Master was clearly wrong. A party who wishes to appeal a Master’s order should therefore bring the appeal as soon as possible.
Furthermore, the mere fact that the Judge hearing the appeal disagrees with the Master’s decision is not sufficient to allow the appeal. The Judge must apply the “clearly wrong” test. If the Master’s decision does not fall within the range of decisions that would be deemed to be “clearly wrong,” then the Judge is obliged to dismiss the appeal, regardless of whether he or she would have decided the matter differently.
As an example, I recently obtained an interim custody order for week on, week off shared parenting. The opposing party promptly appealed the Master’s order. At the appeal, the Judge stated that while he would not have made the same decision had he presided over the original application, he could not make a finding that the Master was “clearly wrong” in ordering shared parenting, and as such dismissed the appeal.
Appealing an order is a serious and potentially costly decision and should not be taken lightly. Speak to one of our lawyers today if you are considering appealing a court order.
