Family Interim Order Appeals Require Leave
Our Family Interim Order Appeals family lawyers know that BC family law is clear that interim are orders are designed to be made promptly and to last only until a full trial on the issues can be heard. At trial a judge hearing the case has the benefit of watching witnesses on the stand, determining their credibility and observing the family law parties under cross examination. For this reason Family Interim Order Appeals are rarely successful and you need approval or “leave” from the Court to even be allowed to proceed with such an appeal. Parties are expected to set the matter down for trial promptly and can often get a trial date earlier than any Appeal would be heard on the disputed interim order. In rare cases leave to appeal an interim order will be allowed. In this week’s case the BC Court of Appeal reiterated the law that needs to applied for a successful leave to appeal in a Family Interim Order Appeals case.
Protection orders are now determined to be interim orders according to a recent BC Appeal Court decision of S.H.F.N. v. A.B.N that granted leave to appeal by a spouse who was the subject of a protection order against him that was to last for 1 year. This is the first case dealing with the emotion laden issues relating to protection orders where one spouse says they are fearful for their safety and the other spouse often says this fear is groundless or exaggerated.
[6] Section 183 of the Family Law Act provides that a protection order, unless otherwise ordered, expires one year from the date it is made. Section 183 also provides that relief in the nature of a protection order may be the sole remedy sought in court proceedings, or may be sought in conjunction with a claim for other relief.
[7] It is well established that interim orders in family proceedings are primarily designed to maintain the status quo and to provide short-term solutions: Fitzgibbon v. Fitzgibbon, 2014 BCCA 403; Johnson v. Jessel, 2012 BCCA 393; and Aleong v. Aleong, 2013 BCCA 167.
[8] The term “interim” has two connotations. One is “time limited” and the other is “interlocutory”. In both senses I consider that the term “interim relief” connotes something short of permanent relief and something short of the entire relief sought in a proceeding.
[9] In this case the protection order is subject to further extensions by the court, is not the entire relief sought in the litigation, and is limited. In my view it falls squarely within the term “interim relief” in Rule 2.1. This leads me to conclude that leave to appeal is required.
[10] Having said leave to appeal is required, should it be granted? The answer is yes, in my view. I have not been provided with reasons for judgment in respect to the protection order, but I am informed by the parties that the reasons of the judge are brief and refer to the result of the Hague Convention hearing. While it is rare for this court to interfere with an interim order dealing with the custodial arrangements for a child or children in family litigation (T.N. v. J.C.N., 2013 BCCA 432), in these circumstances it seems that the protection order and the Hague Convention order given by Mr. Justice Affleck are intimately linked. That being so, I consider it plain that the interests of the children and the parties, and the interests of justice, favour the two matters proceeding together through our court.
If you have questions about Family Interim Order Appeals you need to see a lawyer immediately as strict deadlines apply. Special rules apply to Family Interim Order Appeals and the test to succeed is a strict one. Our lawyers are experienced in the Supreme Court of canada and the BC Court of Appeal and have a winning track record so we can give you a straight answer if you have a Family Interim Order Appeals question. Contact us across BC at 1-877-602-9900 to set up an appointment to me with us in any of our 4 offices.
