How to Win Your Family Law Appeal to the Ontario Court of Appeal or Divisional Court & How to Know if You Should Appeal
/You often won't have a choice about going to Family Court at the trial level. Either you're the Applicant, petitioning the court for something (divorce, spousal support, child support, child custody), or you're the Respondent replying to an application for one of those things by your ex-partner. Sometimes you'll be happy with the outcome of your family law case at the trial level. But at other times you’ll be dissatisfied, either because you didn't get everything you asked for, or because the other side got some or all of what it asked for.
Compared to a trial where you had no choice but to show up, you'll always have a choice over whether to appeal a negative family trial court judgment to a higher court (unless you're forced to respond to an appeal by the other party to a case). The strategy to win a family law appeal is actually quite different than a winning family trial strategy, as trials are driven almost entirely by the facts (within a thin legal veneer spread on top), while appeals are driven by the law.
The questions you should be asking yourself in considering whether to appeal are:
HOW GREAT WILL BE THE IMPACT ON MY FAMILY?
In terms of impact of the family law trial judgment, a slightly too high (in your opinion) spousal support award against you would arguably have a much lesser impact than losing custody of your children to the other party. Because appeals are expensive, it may not be worth appealing over a smaller financial amount, but larger amounts of money, and child parenting time or decision making could all be worth appealing from an impact perspective.
HOW LONG-LASTING WILL BE THE NEGATIVE IMPACT?
The lasting effect of the impact of the trial judgment relates to whether this is a final or interlocutory (temporary) family court order, though even temporary orders can become the status quo that is later difficult to change. Final orders are usually more worthwhile appealing than temporary orders, because there is no more “case” after the final order.
SHOULD I JUST WAIT FOR A CHANGE IN CIRCUMSTANCES?
If you think circumstances will improve for you in the future (like you might be in a better psychological and financial position to care for your children), then you might want to just wait out a negative family court final order and reapply to the court later citing a change of circumstances, rather than pursuing an appeal. However, a change of circumstances motion can take longer and cost more than an appeal, so the balance of appeal versus waiting for a change must be carefully weighed.
WHAT ARE MY PROSPECTS OF SUCCESS ON A FAMILY LAW APPEAL?
Consider in as objective of a way possible where the "justice" of the matter appears to lie, and try your best to imagine how unjust to the outside objective observer the negative judgment in question would appear. No appellate court is going to care about you having to pay $550 per month in child support, when really you think the figure should have been $500. However, lots of courts might have sympathy for you losing complete custody of your children, when you had presented a viable parenting plan, and there are serious doubts about your ex-partner's ability to parent.
You will always have a three-judge panel hearing your appeal, rather than the one judge at trial, thus maximizing the prospects of obtaining a reasonable, rational decision from at least two of them (majority rules). However, you should realize that appellate courts generally defer to trial court findings of fact, because it is only the trial courts who hear the live evidence.
My experience has been that family appeals are the toughest appeals of all appeals to succeed on, where statistics say about 1 in 3 criminal appeals succeed, and 1 in 4 civil appeals have some success. Family appeal odds would, unfortunately, be lower than 1 in 4, but much will depend upon how the appeal is presented, and who are the judges hearing the appeal.
WHICH COURT WILL HEAR MY FAMILY LAW APPEAL?
In Ontario family law appeals are heard either by the Court of Appeal or the Divisional Court, but which court is the right court can be confusing to determine. Generally, final orders under federal legislation like the Divorce Act go to the Court of Appeal, final orders under provincial legislation like the Children’s Law Reform Act go to the Divisional Court, interlocutory (temporary) orders go to the Divisional Court and require an advance motion for leave (permission) to appeal. You don’t want to accidentally appeal to the wrong court. Family appeal jurisdiction is sufficiently complex that you should always get legal advice on where to appeal.
An application for leave to appeal to the Supreme Court of Canada is also possible once you’ve exhausted all other levels of appeal. While only about one family case a year in Canada receives leave to appeal to the SCC, frankly not that many apply for leave because the odds are so low, so if you are able to sell your case as involving an issue of national public importance, it may be worth seeking leave to the SCC. Read more about the top four considerations for seeking leave to the SCC here.
DO I NEED A LAWYER FOR A FAMILY APPEAL?
Probably, if you wish to maximize your prospects of winning. While your legal fees finances may have been largely exhausted by trial proceedings, appeals are at least usually much less expensive for legal fees than most family trials.
Appeals involve a much more paper-based and technical process than family trials, thus anyone trying to undertake a family appeal by her or himself needs to be familiar with the rules of court, how to conduct legal research, how to prepare a factum of argument and book of authorities, and how to orally argue the case before the court. In theory, it's possible for a self-represented litigant to conduct a successful appeal, but you're going to have an uphill battle that from a legal argument perspective will be more challenging than the battle you fought before a trial family court.
HOW DO I WIN MY FAMILY APPEAL?
Winning a family appeal involves:
convincing an appeals court there were clear errors of law in the trial judgment which affected the result;
convincing an appeals court that the trial judge so misapprehended the facts as to rise to an error of law (because errors of fact alone aren’t appealable);
convincing an appeals court that the trial judge exceeded her/his jurisdiction;
most importantly, convincing an appeals court that the trial result was manifestly unjust, and that because of the already identified errors, the appeal court should wade into the matter in order to remedy that gross injustice.
How the foregoing is practically accomplished involves marshalling legal arguments based on compelling court decision precedents and presenting the facts from the trial after a careful analysis of all transcripts of the testimony and exhibits in a way that tempts the appellate court to “fix” the trial result. Appellate courts can’t change trial court results just because if they had been sitting as the trial judge, they would have decided differently. Rather, there need to be real significant tangible legal errors that were committed by the trial judge and which may have affected the result, in order for an appeal court to be able to change the result, which could involve the appeal court varying the trial judgment, sending the case back to the same trial judge for reconsideration, or sending it back to a different trial judge (which while common enough in criminal appeals, is rare in family appeals because appellate courts are very reluctant to subject parties to another trial).