In family appeal cases, one side is often disappointed by the outcome and may wish to retain a Family Appeal Lawyer to review the decision to see if an error occurred in the proceedings and the reasons for decisions. Statistics indicate that at least one third of family law appeals are at least partially successful.
Before appealing, a careful analysis of the decision should be done. The Court of Appeal will further expect the appellant, and where the respondent is also appealing, to clearly state the nature of the decision-maker’s error.
Further, the Court of Appeal has different standards of review for different types of errors, reflecting their deference to the decision-maker, who often has the opportunity to physically see the parties in court, whereas the Court of Appeal largely reviews the transcripts and other materials filed.
For example, if the decision-maker makes a determination of pure law, the standard is correctness, or whether or not the decision-maker was correct about what the law is. If the decision is one of fact – for example, the credibility of a witness’ testimony, the standard is usually a “palpable and overriding” error, or an unmistakable error that would change the decision.
Spouses should also be aware that there are different rules for appealing, depending on the court in which the original decision was made. Further, depending on the court appealed to, there are different time limits for both filing the appeal and to complete the steps required afterwards. All of these rules must be strictly adhered to, lest the appeal fail for procedural reasons. MacLean Family Law has many experienced lawyers who can advise on whether an appeal should be pursued, and if so, how to ensure it is done properly and in a timely way.
The principle of finality in family matters is important, so that parties can get on with their lives and the Court of Appeal cannot simply re-decide the case afresh in most cases. Certain criteria must be met to be successful on a family law appeal but errors can be fixed by the Court of Appeal.
The Honourable Roger Kerans, formerly of the Alberta Court of Appeal, has summarized the categories of appellate review from a family law decision as follows regarding matters:
- Involving the principles of natural justice;
- Of jurisdiction;
- Of fact;
- Of law;
- Of mixed fact and law; and
- Of discretion.
Interim orders in family law are generally orders made before a trial. They can, in some cases, be appealed. However, there are some restrictions. Interim orders in BC Provincial Court generally may not be appealed. Interim orders of a “Master” in BC Supreme Court can be appealed to a Justice of the BC Supreme Court. Most interim orders of Justice of the BC Supreme Court may be appealed to the Court of Appeal, but first require leave or permission from the Court of Appeal.
Further, the decision of Hokhold v. Gerbrandt 2015 BCCA 268 held that Court Orders must be obeyed before parties who are dissatisfied with them will be heard on any appeals from them.
Courts will decline to hear an appeal of any party who is in arrears with respect to family support and shows an unwillingness to comply with court orders.
MacLean Law has an enviable track record regarding family law appeals.
Lorne N. MacLean, KC, has been involved in, and won a number of key BC Court of Appeal and SCC decisions:
WIN – Devathasan v. Devathasan, 2020 BCCA 209 – Lorne MacLean K.C., successfully dismisses the appellant’s appeal as abandoned for the failure of the appellant to comply with the conditions of an order extending time for the filing and service of the notice of appeal, and filling of the appeal record and transcripts.
WIN – Devathasan v. Devathasan, 2020 BCCA 115 – Lorne MacLean K.C. , representing the wife, successfully dismissed the appellant husband’s application to vary the conditions established by a single justice in granting his application for an extension of time to commence his appeal.
WIN – Bhimani v. Beninteso, 2020 BCCA 174 – Fraser MacLean and Anastasiya Sadovska successfully dismiss the Appellant’s appeal. The underlying appeal from a dismissal of a claim for division of family property and the imposition of a fine for non-compliance with disclosure obligations was dismissed as abandoned. The case touches on COVID-19 and the interests of justice.
WIN – Bhimani v. Beninteso, 2020 BCCA 79 – Fraser MacLean successfully secured $9,500 in security for costs of the appeal, despite the fact the appellant was applying for an order for indigent status to waive fees.
WIN – Baryla v. Baryla, 2019 BCCA 22 – Nick Davies, representing the appellant, challenged the amount of a compensation payment, the failure to deal with distributive taxes, and the awarding of spousal support after an equal division of assets. Held, appeal allowed, new trial ordered. It was necessary for the court below to determine whether the registration of title in joint tenancy was an inter vivos gift to the husband, and to account for distributive taxes upon division of the assets. The question of spousal support after an equal division of assets must consider whether an award would amount to “double dipping”.
WIN: Young v. Young (1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (Q.L.)
Mr. MacLean acted for the wife and obtained sole custody, substantial support, 100 percent of the family home and special costs in one of Canada’s most famous child custody cases.
WIN: Lightle v. Kotar 2014 BCCA 69
In this case, MacLean Law obtained spousal and child support that was dramatically increased from the trial judgment, the time limit on spousal support was removed, and further found that spousal support would be reviewed rather than terminated prior to the time range indicated by the Spousal Support Advisory Guidelines. This case was the first Appellate case to decide that a lucrative stockbroker’s book of business was family property to be divided. The other party’s request for leave to appeal to the Supreme Court of Canada was denied.
WIN: Dominak v Lockhart 2014 BCCA 432
MacLean Law appealed an order staying family law proceedings on the basis that there was an enforceable settlement agreement. The Court of Appeal agreed that there was no binding agreement, as the parties had not agreed on the important issue of division of assets, and the chambers judge failed to consider all the evidence of all material facts to determine the entire scope of the settlement.
WIN: Embree v Johnston 2013 BCCA 74
MacLean Law acted for the stepfather, who counter-claimed that the biological father of the child should be paying child support to ensure the obligations of all parents to support their child was properly before the court. The trial court had dismissed the stepfather’s claim, and awarded special costs against. On appeal, MacLean Law obtained an order from the Court of Appeal, reinstated the stepfather’s claim, and set aside the special costs award.
LOSS on Appeal, WIN at trial: Leskun v Leskun 2006 SCC 25
This polarizing case on spousal support and misconduct upheld a refusal by the lower court to further reduce and cancel an amount of support that MacLean had successfully set at a very low level at trial some years before. While the court upheld that spousal misconduct itself was not to be a factor in determining spousal support, this case, established key principles for spousal support decisions and reviews of the same, including that the consequences of spousal misconduct could be taken into account.
If you feel that a trial judge has erred in his or her decision, call MacLean Law to evaluate your situation and confer with you on the options to file a family law appeal.
