Appeals
Author | Julien D. Payne/Marilyn A. Payne |
Pages | 623-635 |
623623
Chapter 1 1
Appeals
A. DEFINITION OF “APPELLATE COURT”
Section 2(1) of the Divorce Act provides t hat “‘appellate court,’ in respect of an
appeal from a court, means the court exercising appellate jurisdiction with
respect to that appeal.” is denition is relevant to the operation of sec-
tions 21 and 25(3) of the Act. An examination of the aforementioned pro-
visions indicates that the determination of the appropriate appellate court
and the procedure applicable on appea ls has been delegated to the provi nces.1
Although section 96 of e Constitution Act, 1867 binds both the Parliament
of Canada and the provincial legislatures and precludes any appellate juris-
diction in divorce proceed ings being exercised by tribu nals other than those
presided over by federally appointed judges, some exibility exists for the
provinces to select the appropr iate appellate court in exercisi ng their legisla-
tive jurisdiction over the administration of justice. e composition of the
appellate court cou ld also vary according to whether the appe al is in respect
of an interim order or a perm anent order for corollary re lief.
B. GENERAL OBSERVATIONS
Section 21(1) of the Divorce Act confers a genera l right to appeal from any judg-
ment or order, whether nal or interim, made pu rsuant to the Act. Sections
21(2), (3) and (4), however, impose restrictions on the right of appeal, which
vary according to whether the appeal relates to the judgment qua marital
1 As to the provi ncial power of a tr ial judge to reserv e or refer matters to an appel late
court, see Ar nold v Arnold (1965–69), 2 NSR 348 (CA); Iants is v Papatheodorou (1971), 3
RFL 158 (Ont CA).
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