FAMILY LAW APPEALS
Vancouver and Calgary Family Appeal Lawyers deal with high stakes and complex financial property and support disputes and important child custody and parenting time issues. Lorne MacLean, QC, founder of our top rated team, explains that the BC Court of Appeal decides about 300 appeals per year and the Alberta Court of Appeal hears a similar number. In family appeal cases, one side is often disappointed by the outcome and may wish to retain top Vancouver and Calgary Family Appeal Lawyers to see if they have any chance of having the decision they dislike changed. Statistics indicate at least one third of family law appeals are at least partially successful.
LORNE MACLEAN, QC: SUPREME COURT FAMILY APPEAL LAWYER
Vancouver and Calgary Family Appeal Lawyers need to first assess and then explain to their family law client what the chances of a successful family law appeal in that family law client’s case are. Lorne N. MacLean, QC, one of Canada’s most successful Vancouver Family Appeal Lawyers, helps clients understand the test to be applied and the Court of Appeal in these important cases. The principle of finality in family matters is important so parties can get on with their lives and the Court of Appeal can’t simply re-decide the case afresh in most cases. Certain criteria must be met to win a Vancouver or Calgary family law appeal.
ERRORS CAN BE FIXED BY 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:
- matters involving the principles of natural justice,
- matters of jurisdiction,
- matters of fact,
- matters of law,
- matters of mixed fact and law, and
- matters of discretion.
Generally, The BC or Alberta Court of Appeal will not change the decision of a lower court in a family law case unless that lower court has committed an error of law, made an overriding error of fact, or erred in exercising its discretion. Mixed questions of fact and law will also fall into these three categories. Issues of jurisdiction may arise in family cases when assets are located across the world and spouses have connections to more than one jurisdiction. In today’s modern world, this class of appeal is growing.
Lorne N. MacLean, QC, warns that counsel should frame their appeal only after analyzing what type of error forms the basis of the family appeal, because each requires a different standard of review. The Appeal Court needs to decide which standard to apply, and expects both Appellant and Respondent to set out the nature of the alleged error. Appeal courts will be strict in requiring the appellant to cogently argue that the trial or chambers judge made a mistake of law, misapprehended the facts, took irrelevant matters into account, or failed to exercise his discretion properly or at all. All too often, self represented clients and some family counsel fail to do this at an early stage.
DIFFERENT STANDARDS FOR DIFFERENT ERRORS
The standards of review are as follows:
- The standard of review of this court on questions of law is one of correctness.
- On matters of fact, the question is whether the trial judge is shown to have made a palpable and overriding error.
- Where the issue is the exercise of a trial judge’s discretion, the issue is whether it is shown that he failed to give sufficient weight to relevant considerations or whether the decision may result in injustice.
MACLEAN LAW’S ENVIABLE TRACK RECORD ON FAMILY LAW APPEALS
Lorne N. MacLean, QC has been involved in and won a number of key BC Court of Appeal and SCC decisions for his family law clients:
WIN: Young v. Young (1993 CanLII 34 (SCC),  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 Canada’s most famous child custody case. At para. 102 per Justice L’Heureux‑Dubé says the best interests of the child is a child-centric analysis, and “is the positive right [of the child] to the best possible arrangements in the circumstances of the parties”, and should not focus on harm, although the presence or absence of harm may be an important factor. The test is contextual and future focused encompassing a myriad of considerations. It is “person-oriented” rather than “act-oriented” requiring a consideration of the “whole person viewed as a social being” (at para 71).
WIN: Lightle v. Kotar (2014, B.C.C.A)
Leave to appeal to the Supreme Court of Canada denied. Where a trial judge has found that the support recipient has a prospect for early self-sufficiency, spousal support will be reviewed rather than terminated prior to the time range indicated by the SSAG. In this case, spousal and child support were dramatically increased from the trial judgment and the time limit on spousal support was removed. This case is the first Appellate case to decide a lucrative stockbroker’s book of business was family property to be divided.
WIN: Dominak v Lockhart
Appeal from an order staying family law proceedings on the basis that an enforceable settlement agreement had been reached. The appellant argued that the parties had not agreed on the issue of the division of family assets and there was no binding agreement. The chambers judge excluded the first two pages of the letter proposing the settlement as “campaign talk”, and found an “objectively reasonable” settlement in the terms set out on the third page only. Held: appeal allowed. There was no binding agreement. The parties had not agreed on the important issue of the division of assets. The chambers judge failed to consider all of the evidence of all of the material facts and to determine the entire scope of the settlement.
WIN: Embree v Johnston 2013 BCCA 074
In this case Mr MacLean sued the biological father for support on behalf of a step parent to ensure the obligations of all parents to support their child was properly before the court.
LOSS on Appeal, WIN at trial: Leskun v Leskun
This polarizing case on spousal support and past misconduct, upheld a refusal by the lower court to further reduce and cancel an amount of support of that MacLean had successfully set at a very low level at trial some years before. This case helped set the law on reviews but courts have been reluctant to follow the approach that reviews should be rarely used in spousal support cases.