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 provisions indicates that the determination of the 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 legislatures and precludes any appellate jurisdiction in divorce proceedings

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

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

ing their legislative jurisdiction over the administration of justice. 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. GENERAL 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 right 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).