Appeals

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 593-604

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 

APPEALS

A. DEFINITION OF “APPELLATE COURT”

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

a court, means the cour t exercising appellate jurisdiction with respec t to that appeal. is

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

of the aforementioned provisions indic ates that the determ ination of the appropriate ap-

pellate court and the procedure applicable on appeals has be en delegated to the provinces.

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

the provincial legislatu res and precludes any appel late jurisd iction in divorce proc eedings

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

some f‌lexibility exis ts for the provinces to select t he 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 a n interim

order or a permanent order for coroll ary 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 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 corollary orders. A non-party is

not entitled to appea l.

C. RESTRICTIONS ON STATUS APPEAL S

Pursuant to sections (), (), (), and () of the Divorce Act, no appeal lies from a judg-

ment granting a divorce once the time f‌ixed by law for instit uting an appeal has expired,

 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.).