When can a family law appeal be filed?
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. Herr Law Group 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.
What are the reasons to file a family law appeal?
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.
Can an interim order be appealed?
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.
Why Choose Herr Law Group for Your Family Law Appeals?
From time to time at the conclusion of a proceeding, either of the parties may want to have the decision reviewed by a higher court. The decision can be changed or reversed by way of appeal.
Trials, and specifically family law trials, are exhausting both materially and psychologically. It is important to note that family law appeals are not only costly but are also extremely complicated. There are important things to consider when it comes to filing family law appeals such as if the Order is appealable or not, the time limits for appeals, payment of the filing fees and many more.
With over 38 years of combined experience in family law, the team at Herr LAw Group can help you decide whether to proceed with an appeal by taking into consideration all the pros and cons. We will take time and effort to review the facts of your case and the applicable law to determine whether a judge has made an error.
We invite you to arrange a consultation with our family law attorneys today!