FAMILY LAW COURT APPEAL LAWYER ONTARIO
FAMILY LAW APPEALS TEMPORARY FINAL ORDER JUDGMENT MOTION CHILD CUSTODY SPOUSAL SUPPORT PROPERTY PARENTING TIME DECISION MAKING TORONTO OTTAWA HAMILTON KITCHENER LONDON AVOCAT DROIT DE LA FAMILLE APPEL
THE FIRM’S APPROACH TO FAMILY LAW APPEALS
The firm successfully conducts appeals before Ontario's Court of Appeal and Divisional Court, as well as at the Supreme Court of Canada. Other lawyers refer their family law appeals to us because of our expertise and experience.
We guarantee all prospective appeal clients to prioritize getting back to you as soon as possible in assessing your appeal prospects. We recognize there's nothing more frustrating than not being able to get hold of a lawyer when you really need one if you’re faced with a ticking appeal filing limitation deadline.
The firm’s Senior Barrister Gordon S. Campbell has extensive experience with final and interlocutory child custody & decision-making, parenting time, spousal and child support, property division and costs order appeals from throughout Ontario before the Ontario Superior Court of Justice, Ontario Divisional Court and Court of Appeal for Ontario, appearing on appeals as high as the Supreme Court of Canada. He also deals with transnational international family law appeals, including Hague Convention and foreign judgment enforcement in Ontario’s trial and appellate courts.
We Respect Referrals
We respect all referrals. We frequently collaborate with trial legal counsel should that be desired, or we will take over carriage of a temporary or final order family appeal in an appellate court, leaving ongoing trial proceedings to trial counsel.
Complimentary Case Evaluation
We offer a free, without charge, no-obligation review of your reasons for judgment, order or endorsement that you’re considering appealing to determine if there might be some prospect of success on appeal.
No Charge for Travel or at Hourly Rates
We don’t charge for travel time or disbursements for family appeals anywhere in Ontario. We always quote flat block fees for appeals, and clearly explain in our written retainer what is included in that fee.
WHY FAMILY APPEALS ARE DIFFERENT FROM OTHER APPEALS
Family and child protection appeals’ unique complex challenges in Ontario include:
variable short deadlines for appeals, ranging from 7 to 15 to 30 days;
variations in which court an appeal proceeds to (sometimes to the Divisional Court, at other times to the Court of Appeal, occasionally to the Superior Court of Justice, rarely to the Supreme Court of Canada);
potential for more than two parties to be involved in the appeal (other family members, the CAS, the Office of the Children's Lawyer);
special rules governing such appeals.
On the upside, most appellate courts prioritize the hearing of family and child protection appeals over other cases because of the importance of a speedy resolution to the parties’ lives and particularly to children's lives. The key to winning family appeals is to engage the appellate court with the justice of the case, rooting that justice in clear errors of law.
5 COMMON QUESTIONS & ANSWERS ABOUT FAMILY LAW APPEALS
1. WHICH FAMILY COURT JUDGMENTS CAN BE APPEALED IN ONTARIO?
Both interlocutory (temporary) and final family law court orders in Ontario can be appealed to a higher court. Sometimes the court Rules require first seeking "leave” to appeal to secure advance permission to pursue an appeal, at other times there is a "right" of appeal.
2. WHERE ARE FAMILY COURT JUDGMENTS APPEALED IN ONTARIO?
Some appeals proceed to the Superior Court of Justice to a single judge, others to the Divisional Court (part of the Superior Court of Justice) before three judges, and others still to the Court of Appeal for Ontario again with three judges, depending on which type of family court order is being challenged from which level of court. You need a lawyer familiar with the many nuances of which court an appeal should be pursued; courts themselves can disagree over who has jurisdiction to hear a family appeal.
Even if you fail in an initial family appeal, you may have one or more additional levels of appeal available to you. Leave (permission) can be sought to appeal a Divisional Court judgment to the Court of Appeal. And leave can further be sought to appeal a Court of Appeal judgment to the Supreme Court of Canada.
3. WHAT IS THE SUCCESS CHANCES ON A FAMILY APPEAL IN ONTARIO?
The odds of success on a family appeal are extremely difficult to predict, however the goal of any appellate lawyer should be to maximize prospects of success. While statistics suggest about 1 in 4 civil (as opposed to criminal) appeals succeed on some basis in Ontario, the reality is that appellate courts tend to defer more often to trial judges in family cases than in other types of cases, possibly because the cases are factually so complex and nuanced, or courts are keen to bring finality to family litigation.
An appeal is not a new trial, so your best chance of success will always be at trial. Appeals are available to guard against significant trial, motion and pre-trial proceedings injustices, but their purpose isn’t just to rehash the trial evidence and arguments before new judges. You need to identify legal errors the trial judge made which could have affected the result in order to interest an appellate court in changing that result.
4. WHEN MUST FAMILY COURT APPEALS BE FILED IN ONTARIO?
Appeal service and filing deadlines are very short - sometimes as short as a few days, and almost never longer than 30 days. Even if you can't immediately afford a lawyer, it's far better to file a protective self-represented appeal within the time limit that can later be expanded upon by a lawyer, rather than missing the deadline because you are still searching for a lawyer.
Missing the deadline can be fatal to your appeal. Extensions are rarely granted. Every day past the appeal deadline makes it less and less likely an appeal court will grant an extension for serving and filing an appeal.
5. IS A TRIAL-LEVEL FAMILY COURT JUDGMENT AUTOMATICALLY SUSPENDED PENDING APPEAL IN ONTARIO?
The Rules provide that only money judgments (other than spousal or child support) are automatically suspended pending appeal. So a family trial award on the division of net family property or costs will be suspended pending an appeal. But for everything else, like an order authorizing the relocation of a child and enrolment in a new school or for payment of a large monthly amount of spousal support, you’ll need to bring a motion for a stay pending appeal to the court you are appealing to.
The stay pending appeal motion can be as important as the fight on the appeal itself. Such motions require considerable extra effort to produce a compelling, detailed affidavit with exhibits and a factum of legal argument justifying why irreparable harm will be suffered if the stay isn’t granted, and how the balance of convenience favours you. The appeal court will then hear oral argument on that stay motion which could take place many months before the hearing of the substantive appeal. While a failed stay on spousal support might be remedied after a successful appeal by repayment of money, a trial order authorizing moving children across the country or around the world could be far more difficult to undo, making an appeal court less likely to allow a later substantive appeal for practical reasons, notwithstanding legal errors at trial.
7 QUESTIONS FOR HOW TO DECIDE IF YOU SHOULD APPEAL A FAMILY COURT ORDER
Appeals are always much harder to succeed on than trials, especially for family appeals, with appellate judges prone to defer to whatever the trial judge decided, even if there are factual and legal errors in the trial judgment. However, family appeals are definitely winnable; there are just certain realities which you need to understand and questions you should ask yourself in deciding whether you should appeal.
1. HOW SERIOUS IS THE ADVERSE ORDER AGAINST ME? (The “Only Appeal Catastrophic Family Trial Results” Principle)
Losing child custody or decision making, or having a high financial award made against you, could be worth appealing even with challenging prospects of success because of the significant life-changing consequences of those results. However, for issues of smaller financial amounts or more minor issues concerning children, you should carefully weigh the cost-benefit ratio of an appeal, including the odds of success and the affordability of an appeal.
2. DID I REPRESENT MYSELF AT TRIAL? (The “Trial Self-Rep Family Appeals Usually Don’t Work, Unless the Other Side Was Also a Self-rep” Principle)
If you represented yourself at a family court trial or motion without using a lawyer, and the opposing party used a lawyer, it will be much more challenging to overturn an adverse trial court result by hiring a lawyer just for the appeal, as appeals mostly don’t let you introduce new facts or raise new legal arguments that should have been made at trial, and the trial factual record could be very thin in a self-rep case.
It’s completely understandable and unfortunate that family litigants sometimes have to represent themselves at trial, but their odds of winning as a self-rep at trial are arguably better than their being able to mount an appeal successfully, even with a lawyer, after not using a lawyer at trial. Representing yourself at trial, followed by hiring a lawyer for an appeal, might be more viable if the opposing party at trial also represented themselves.
The key for any appellate lawyer assessing prospects of success on an appeal is not just legal errors in a trial judgment, but also whether there is any evidentiary material at all to work with from the trial in order to build the foundations of the appeal. How many witnesses at trial testified and in what detail? How many exhibits were filed? Was expert evidence produced? What legal arguments were made at trial? A lack of witnesses, exhibits, experts and arguments at trial might mean there simply isn’t a factual basis upon which to base an appeal alleging legal errors.
However, some family trial-level court proceedings like simple motions or procedural matters like the striking of pleadings, might not require much of a factual record, so it’s always worth consulting with an appeals lawyer to assess if there is a prospect of success on an appeal, even if you did represent yourself in a family trial court. Some motion results like the striking of pleadings may be so devastating that an appeal is effectively mandatory if you wish to keep fighting your case.
3. AM I ONLY DISPUTING A LARGE COSTS AWARD MADE AGAINST ME? (The “Costs-Only Family Appeals Rarely Work” Principle)
Appealing family trial costs awards by themselves (even very large ones in the hundreds of thousands of dollars) rarely succeed. Family trial court costs appeals are best combined with appeals on the substantive merits of the case - like an improper division of spousal property - as those merits will best engage an appellate court to dig into the justice of the trial court result.
Such a substantive appeal might also give you leverage to negotiate on trial costs with the other party in order to resolve the appeal. You shouldn’t appeal just for the sake of appealing, but a horrific trial costs awards could make an appeal worthwhile if there is any chance of reducing that award. And the opposing party might then be willing to compromise on trial costs, in exchange for you dropping the substantive appeal which could take up to a year to resolve, thus trading accelerated finality for costs.
4. AM I DISPUTING A TEMPORARY OR FINAL FAMILY COURT ORDER? (The “Temporary Order Appeals are Especially Costly & Time-Consuming” Principle)
Appealing a temporary family court order in Ontario is unfortunately more complicated and costly than appealing a final order. With a temporary order appeal, you typically need three proceedings in Ontario: (i) an application for leave to appeal, (ii) usually a motion for a stay pending appeal to stop implementation of the trial-level court temporary order, and (iii) an appeal if leave to appeal is granted, all of which go to the Divisional Court rather than the Court of Appeal. Although more complex and costly, some temporary orders could so heavily influence the final outcome of trial proceedings - like a temporary order permitting a parent to move across the province, country or world with children that a trial judge after trial years later is unlikely to reverse - that you can’t wait until after a trial to appeal if you disagree with them, as they may effectively create a new status quo (even if the temporary order says otherwise).
Deciding when to appeal a temporary family court order may be driven by:
whether it’s possible to later remedy the order at trial, like by receiving a refund of spousal or child support payments that were set too high in an earlier temporary order;
whether the temporary order risks creating a new status quo concerning child custody, decision making or parenting time;
whether your family lawyer budget can accommodate an interlocutory order appeal with an appellate lawyer in addition to ongoing trial lawyer fees, or if you’re better off conserving limited funds to pay your trial lawyer with.
5. WERE MY PLEADINGS JUST STRUCK? (The “Appealing Striking of Pleadings is Usually Worth It” Principle)
How to appeal the striking of family court pleadings in Ontario is one of the most important things any family litigant needs to know, especially if acting as a self-rep at trial. All sorts of supposed misconduct can lead trial court judges to strike your pleadings, essentially forbidding you from further participation in the proceedings: failure to provide timely financial disclosure, failure to pay costs quickly enough, other procedural irregularities.
The catastrophic impact of a court striking your family court trial pleadings results in a one-sided proceeding against you, so don’t wait until after the trial is over to challenge the trial result on an appeal. You need to immediately appeal the striking of pleadings as an interlocutory appeal if you intend to keep fighting in family court, as at trial you’ll be banned from presenting any evidence or making any legal arguments, meaning you’ll not only lose the trial, you’ll also have no factual or legal basis from which to appeal the trial judgment.
6. HOW LONG HAS PASSED SINCE THE FAMILY COURT ORDER AGAINST ME? (The “You Must Appeal Quickly” Principle)
The single most important tip to remember in any family court appeal is to appeal quickly. In Ontario, you’ll usually only have between 15 days (for temporary orders) and 30 days (for final orders) to draft a Notice of Appeal (or Application for Leave to Appeal), serve it on the opposing party, and file it with the appropriate court, including paying the filing fee.
Finding a lawyer and pulling together grounds for appeal can be time-consuming, but the time available for serving and filing an appeal is exceedingly short. This is intentional, as the principle of finality means that those drafting court rules wanted to make it difficult to challenge family trial court orders long after they were made.
It’s extremely difficult to obtain an extension of these time limits to appeal from an appeal court. You’re better off filing a self-rep appeal in a timely manner if you’re having trouble finding or paying for a lawyer and then bring a lawyer into the appeal later once you have the appeal underway, than you are exceeding the time limits hoping a court will accept an excuse that you were looking for a lawyer or raising money to pay for one. A brief timely notice of appeal properly served and filed on a scrap of paper may be worth more than the perfect notice of appeal coming 6 months late.
7. DID I JUST LOSE AN APPEAL AT THE COURT OF APPEAL? (The “It’s Very Difficult But Not Impossible to Get Leave to Appeal to the Supreme Court of Canada” Principle)
How to appeal a family court case to the Supreme Court of Canada shouldn’t be your first consideration if you lose in a family trial court, as you’ll always have at least one and maybe two intervening levels of provincial appeals available to you prior to the SCC level. But if you lose in the Court of Appeal for Ontario, as it’s the highest court in the province your only option to keep fighting is to attempt to get leave (permission) to appeal to the Supreme Court of Canada.
The SCC on average hears about one family law appeal per year for the entire country, but it’s difficult to predict if your proposed appeal might be the one they seize on as involving issues of national public importance. While your odds of getting leave at the SCC and then winning your appeal are low, they’re not impossible, particularly because the SCC’s own filing statistics demonstrate not many family litigants anywhere in Canada apply for leave to appeal to the SCC each year as compared to all the criminal and civil cases seeking leave, perhaps because the family litigants are so financially and emotionally exhausted after long battles in provincial trial and appellate family courts. Thus you’ll be one of the few asking for leave if you do decide to try to get the SCC to hear your case.
The most important issue to consider when assessing if it’s worth seeking leave to the SCC on a family case is that the test for leave is not error of law like in lower appellate courts, but rather is there an issue of national public importance in your case? Any lawyer you hire to pursue leave to appeal to the SCC will need to examine the state of the law throughout Canada in order to sell your family law case as one of legal precedential value making it worth the SCC’s time. You need a somewhat academic approach at the SCC, as the prime reason for the SCC to hear your appeal will not be justice for you, but rather clarification of the law involving your family law issue(s) throughout Canada.
HOW TO RESPOND TO A FAMILY LAW COURT APPEAL: TOP 5 QUESTIONS TO ANSWER
If you are responding to a family law appeal brought against you, you’ll have 5 top issues to consider.
1. CAN YOUR FAMILY TRIAL LAWYER DO THE APPEAL, OR SHOULD YOU BE SEEKING OUT DIFFERENT APPELLATE COUNSEL?
Some family trial lawyers prefer that lawyers concentrating on appeals temporarily take over the case for an appeal, because the appeal lawyer will be more familiar with the appeal court’s procedure, judges, rules and jurisprudence. Other trial lawyers prefer that an appellate lawyer is retained as co-counsel, where the family trial counsel will also be counsel of record on the appeal due to the trial lawyer’s understanding of the trial evidence, but the appellate lawyer will bring appellate expertise the trial lawyer lacks, including a fresh set of eyes to assess all of the evidence from trial for strengths and weaknesses.
Your trial lawyer may ask you to find an appeal lawyer yourself, or may recommend one for you to consider retaining. Either way, your time will be short in retaining an appeal lawyer, so it’s important to clarify with your trial lawyer as soon as you get wind of a potential appeal from the opposing party whether that lawyer prefers to involve a different lawyer for the appeal.
2. IS THE APPELLANT DRAGGING OUT THE TIMELINES FOR THE APPEAL?
It’s possible to bring a motion before an appellate court to strike a family appeal for unreasonable delay. You have a right to a timely family appeal as a respondent.
Appeal courts especially prioritize the listing of family appeals for oral argument. So if the appellant seems to be dragging out the appeal, there are steps you can take before the appeal court as the respondent to demand the “perfection” of the appeal by a particular deadline, followed by the setting of a date for the hearing of the appeal, failing which you can demand the appeal court dismiss the appeal for unreasonable delay.
3. CAN I IMPLEMENT MY FAMILY COURT TRIAL JUDGMENT NOTWITHSTANDING AN APPEAL?
You can act on enforcing parenting time, decision-making for children, and family and child support, unless the opposing party has obtained a stay pending appeal from the court being appealed to. Usually the only thing you can’t act on pending appeal - unless a stay has been imposed - is family property division, and collecting costs, but you absolutely need to obtain legal advice on what you can and can’t do with a trial judgment pending appeal.
You might decide to consent to a stay of the trial decision pending appeal, or you might prefer to contest a stay motion, depending upon the urgency and importance of the issues. Motions for stays pending appeal are usually heard by a single judge of the appeal court.
4. HAS THE TRIAL ORDER BEEN SETTLED YET?
You should settle any trial court order wording as soon as possible, as any appeal risks becoming stuck pending resolution of trial order wording since it’s only the order that is under appeal, which means the trial order needs to be finalized prior to the hearing of the appeal, even if that means going back before the trial judge to settle the order language in a contest fashion.
5. HOW MUCH IN COSTS CAN I WIN SUCCESSFULLY DEFENDING AGAINST A FAMILY LAW APPEAL?
You’ll be entitled to costs if you win a family court appeal, but Ontario appeal courts prefer costs amounts to be fixed as a block amount, typically between about $10,000 and $15,000 for family appeals, even if the actual appeal costs are far higher. They tend not to follow the 60% tariff of actual legal fees spent for appeal costs the way trial courts do for winners, so you’ll likely wind up with under 60% of fees spent appealing or defending against an appeal if you win, though you usually will get something in Ontario’s loser pays system.
HOW MUCH DOES A FAMILY LAW COURT APPEAL IN ONTARIO COST?
A family law court appeal usually costs a small fraction of the total cost of a family court trial proceeding, which could unfortunately become extraordinarily expensive if it makes it all the way until the end of trial, as that would represent years of lawyer work. Typically family appeal costs are no greater than a single complex family law trial court motion, as the amount of work involved is similar, though some appeals may cost less than very complex family motions and more than very simple motions.
We do not charge for any travel time or disbursements for family law appeals anywhere in Ontario.
Our typical flat block fees for a family court appeal (which we believe to be competitive) are:
a. Review of a family court temporary or final order judgment to assess prospects of success on appeal - No charge; we will only take on a family appeal or application for leave to appeal where we believe there is some prospect of success, though unfortunately we typically can’t provide precise odds of success until we’ve had access to and time available for studying trial court transcripts, exhibits, pleadings and submissions in detail which can only happen once we’ve been fully retained for an appeal. We appreciate any prospective family appeal client sending us a copy of the reasons for judgment, the endorsement or the order contemplated being appealed at the time of your first reaching out to us.
b. Appeal of a final order to the Court of Appeal for Ontario or Divisional Court - $30,000 plus HST and disbursements, which includes: preparation, service and filing of the Notice of Appeal; ordering, analysis, service and filing of the viva voce evidence transcripts; review and analysis of all lower court pleadings, affidavits, exhibits, and transcripts; preparation, service and filing of the appeal book and any book of authorities; drafting, service and filing of the factum of legal argument; appearing before the appeal court to make oral arguments, either in person or virtually depending upon the direction of the court. Very complex appeals with voluminous amounts of evidence or especially complicated legal arguments may require a higher fee.
c. Application for leave to appeal a temporary order to the Ontario Divisional Court - $20,000 plus HST and disbursements for the application for leave to appeal, which includes: preparation, service and filing of the Notice of Application for Leave to Appeal; ordering, analysis, service and filing of the viva voce evidence transcripts; review and analysis of all lower court pleadings, affidavits, exhibits and transcripts; preparation, service and filing of the application record; drafting, service and filing of the factum of legal argument. The Divisional Court does not hear oral argument in leave to appeal applications.
d. Appeal of a temporary order to the Divisional Court after leave to appeal has been granted - an additional $15,00 plus HST and disbursements, assuming we already acted on the application for leave to appeal. The argument and evidence of the leave application will need to be reworked for the substantive appeal on the merits, and there will be an oral court hearing to attend which does not exist at the leave to appeal stage. We can take on appeals where we didn’t act on the leave to appeal application, but the cost will be higher as we are not able to benefit from the prior work done on the file at the leave to appeal stage.
e. Application for leave to appeal to the Supreme Court of Canada - $15,000 plus HST and disbursements, including complete drafting, service and filing of the application record and memorandum legal argument. An additional fee would be payable for the preparation and argument of the actual SCC appeal if leave is granted, which would always be greater than $15,000 (typically starting at $20,000 and up), but would depend upon both the complexity of the appeal and the number of other parties who may become involved in the appeal as provincial and federal attorneys general and public interest groups sometimes become involved in cases at the level of the SCC, requiring the parties to conduct additional work in responding to the arguments of those other parties.
f. Motions in appeals (such as for a stay of the trial judgment pending appeal, for an extension of time to serve and file a notice of appeal, to present fresh evidence on appeal) - typically $5,000 to $10,000 plus HST and disbursements beyond the standard fees for the substantive appeal or leave to appeal application, depending in part upon whether the motion will be heard at the same time as the appeal, or as a completely separate proceeding prior to the appeal or application for leave to appeal.
h. Responding to appeals and applications for leave to appeal at the Ontario Court of Appeal, Divisional Court or Supreme Court of Canada - typically the amount of work required to respond to a family law appeal is similar to the amount of effort required to advance an appeal as the appellant, so the legal fees involved when retaining counsel to respond to a family appeal are usually similar to those fees noted above for appellants.
THE “NO FEAR” FAMILY LAW APPEAL LAWYER
Gordon S. Campbell practices as a family law barrister advancing and defending the rights of clients on family law appeals before the Divisional Court of the Ontario Superior Court of Justice, the Court of Appeal for Ontario, and the Supreme Court of Canada, practicing equally in French and English. He served as counsel with the Department of Justice Canada, articled with the Constitutional Law Division of the Ontario Ministry of the Attorney General, and holds degrees in common law (LL.B.) and civil law (B.C.L.) from the McGill University Faculty of Law. He is the author of law books and journal articles published by Carswell Thompson Reuters, LexisNexis Canada & Les Éditions Yvon Blais. He welcomes prospective client enquiries about any family court appeal process.