Appeals

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 595-606

595

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 ind icates that t he determin ation of the appropriate ap-

pellate court and the procedure applicable on appeals has be en 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 prec ludes any appellate jurisdic tion in divorce proceedin gs

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 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. 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 t he Act. Sections (), (), and (), however, im-

pose restrictions on the right of appeal, wh ich vary according to whether the appeal relates

to the judgment qua marital status or to interim or f‌inal corollar y 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 (–),  N.S.R.  (C.A.); Iantsis v. Papatheo dorou (),  R.F.L.  (Ont. C.A.).