Appeals

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 623-635

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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 appell ate jurisdict ion with

respect to that appeal.” is denition is releva nt to the operation of sec-

tions 21 and 25(3) of the Act. An exa mination of the aforementioned pro-

visions indicates t hat the determin ation of the appropriate appellate court

and the procedure applicable on appea ls has been delegated to the provi nces.1

Although sect ion 96 of e Constitution Act, 1867 bind s both the Parliament

of Canada and the prov incial leg islatures and precludes any appellate jur is-

diction in divorce proceed ings being exercised by tribu nals other than those

presided over by federally appointed judges, some exibilit y exists for the

provinces to select the appropr iate appellate court in exercisi ng their legisla-

tive jurisdic tion over the admin istration 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 whet her the appeal relates to t he judgment qua mar ital

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).