Appeals

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 573-583

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APPEAls

A. dEFinition oF “APPEllAtE CouRt”

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

a court, means the cour t exercising appellate jurisdiction with respect 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 appropriat e ap-

pellate court and the procedure applicable on appeals has b een delegated to the provinces.

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

the provincial legislatu res and precludes any appellate 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 jurisd iction over the admin istration 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 corollary relief.

b. gEnERAl obsERvAtions

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

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

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

lates to the judgment qua marital statu s or to interim or f‌inal corollary orders. e right of

 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. Papatheodorou (),  R.F.L.  (Ont. C.A.).

 See Colletta v. Colletta (),  R.F.L. (d)  (Ont. C.A.), wherein it w as held that an appeal solely

respecting i nterim relief lies to the Div isional Court under s. ()(b) of the Courts of Jus tice Act, R.S.O.

, c. C., with leave as provid ed by the Rules of Civil Procedure, but a n appeal with respect to b oth

the divorce and coroll ary relief, whether interi m or f‌inal, lies to the Cour t of Appeal under s. ().

Compare Swift v. Swift (),  O.A.C.  (Div. Ct.). As to leave to appeal, see Section D, below i n this

chapt er.