Appeals

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 599-609

599

CHAPTER 15

APPEALS

A. DEFINITION OF “APPELLATE COURT”

Section () of the Divorce Act provides that “appellate court,” in respect of an appeal from

a court, means the cour t exercising appellate jurisdict ion with respect to that appeal. i s

def‌inition is relevant to the operation of sections  and () of the Act. An exami nation of

the aforementioned prov isions indic ates that the determination of t he appropriate appel-

late court and the procedure applicable on appeals has been delegated to the provinces.

Although section  of the Co nstituti on Act,  bind s both the Parliament of Canada and

the provincial legislat ures and precludes a ny appellate jurisdiction i n divorce proceed ings

being exercised by tribunal s other than those presided over by federally appointed judges,

some f‌lexibility exis ts for the provinces to select the appropriate appellate court in exercis-

ing their legislative jurisdiction over the administration of just ice. e composition of the

appellate court could also va ry according to whether the appeal is in respect of an interim

order or a permanent order for corollar y relief.

B. GENER AL OBSERVATIONS

Section () of the Divorce Act confers a general right to appeal from any judgment or order,

whether f‌inal or interim, made pursuant to the Act. Sections (), (), and (), however,

impose restrictions on the rig ht of appeal, which vary according to whether the appeal

relates to the judgment qua marital status or to interim or f‌inal corollary orders. A non-

party is not entitled to appea l.

 As to the provinci al power of a trial judge to reser ve or refer matters to an appellate cour t, see Arnold v

Arnold (–),  NSR  (CA); Iantsis v Papatheodorou (),  RFL  (Ont CA).