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 appellate jurisdiction with

respect to that appeal.” is denition 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).