Family law litigation can be emotionally and financially exhausting. After receiving a court decision, many people wonder whether they can challenge the result if they believe the judge made a mistake. In Ontario, that process is called an appeal.
However, an appeal is not simply a “second chance” to argue your case. Appeals are governed by strict legal rules, timelines, and legal standards. Understanding how family law appeals work is important before deciding whether to move forward.
What Is a Family Law Appeal?
A family law appeal is a request for a higher court to review a decision made by a lower court. The appeal court does not usually hear witnesses again or conduct a new trial. Instead, it reviews the record from the original hearing to determine whether the judge made a legal or factual error that affected the outcome.
Appeals may arise from decisions involving:
- Parenting time and decision-making responsibility
- Child support
- Spousal support
- Property division
- Relocation disputes
- Enforcement issues
- Procedural decisions
- Final orders and, in some cases, temporary orders
An Appeal Is Not a Re-Trial
One of the most common misunderstandings is that an appeal allows a party to simply re-argue their case because they are unhappy with the result.
That is not how appeals work.
Appeal courts generally give significant deference to trial judges, especially in family law matters where judges assess credibility, hear evidence directly, and make findings based on the specific circumstances of the family.
To succeed on an appeal, the appealing party usually must show that the judge:
- Made an error in applying the law;
- Made a serious factual error;
- Misapprehended important evidence; or
- Reached a decision that was plainly wrong.
Disagreeing with the outcome alone is usually not enough.
Strict Timelines Apply
Appeals are subject to very strict deadlines. Missing an appeal deadline can seriously impact your ability to challenge a decision.
The applicable timeline depends on the type of order being appealed, which court made the original order and which court will hear the appeal.
In many cases, appeal deadlines are short. It is important to seek legal advice immediately after receiving a decision if you are considering an appeal.
Which Court Hears the Appeal?
In Ontario, family law appeals may proceed through different courts depending on where the original decision was made.
For example:
- Certain decisions from the Ontario Court of Justice may be appealed to the Superior Court of Justice.
- Certain decisions from the Superior Court of Justice may be appealed to the Divisional Court or the Court of Appeal for Ontario.
Determining the correct appeal route is extremely important because filing in the wrong court can create delays and additional costs.
Leave to Appeal
In some situations, a party must first obtain “leave” or permission to appeal before the appeal can proceed.
The court will consider factors such as:
- Whether the appeal raises an important legal issue;
- Whether there is a genuine basis for the appeal; and
- Whether the proposed appeal has merit.
Leave to appeal is not automatically granted.
Appeals Can Be Complex and Costly
Appeals involve detailed procedural requirements, including preparing appeal books and transcripts, ordering court recordings or transcripts, filing written legal arguments, complying with strict court rules and deadlines and attending appeal hearings.
Appeals can also be expensive. Courts may order costs against an unsuccessful party, particularly if the appeal lacked merit or unnecessarily prolonged litigation.
Because of this, it is important to carefully assess:
- The strength of the appeal;
- The legal errors being alleged;
- The likelihood of success; and
- The overall cost-benefit analysis.
Can a Family Court Order Be Enforced During an Appeal?
In many cases, a court order remains enforceable even if an appeal has been started.
A party who wishes to pause the enforcement of an order may need to bring a motion for a “stay” pending appeal. The court will consider several factors when deciding whether a stay should be granted.
The Importance of Legal Advice
Family law appeals require a strong understanding of both substantive family law and appellate procedure. Because appeal courts apply specific legal standards and defer to many findings made by trial judges, appeals can be difficult to win.
Obtaining legal advice early is important to:
- Determine whether there are valid grounds of appeal;
- Understand the applicable timelines;
- Assess procedural requirements; and
- Develop an effective appellate strategy.
Family law appeals are complex and highly technical. While appeals can provide an important mechanism for correcting legal errors, they are not an opportunity to simply re-litigate a case.
If you are considering appealing a family court decision, it is important to act quickly and obtain legal advice as soon as possible to protect your rights and understand your options.
The content on this post is for information purposes only and is not legal advice, which cannot be given without knowing the facts of a specific situation. You should never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. The use of the website does not establish a solicitor and client relationship.