Appeals

• Date: 27 July 2022
• Author: Julien D. Payne,Marilyn A. Payne

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 

Appeals

A. DEFINITION OF “APPELLATE COURT”

Section 2(1) of the Divorce Act provides that “appellate court,” in respect of an appeal from a

court, means the court exercising appellate jurisdiction with respect to that appeal. is def-

inition is relevant to the operation of sections 21 and 25(3) of the Act. An examination of the

aforementioned provisions indicates that the determination of the appropriate appellate court

and the procedure applicable on appeals has been delegated to the provinces.1 Although sec-

tion 96 of the Constitution Act, 1867 binds both the Parliament of Canada and the provincial

legislatures and precludes any appellate jurisdiction in divorce proceedings being exercised

by tribunals other than those presided over by federally appointed judges, some exibility

exists for the provinces to select the appropriate appellate court in exercising their legislative

jurisdiction over the administration of justice. e composition of the appellate court could

also vary according to whether the appeal is in respect of an interim order or a permanent

order for corollary relief.

B. GENERAL OBSERVATIONS

Section 21(1) of the Divorce Act confers a general right to appeal from any judgment or order,

whether nal or interim, made pursuant 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 status or to interim or nal corollary orders. A non-party is not

entitled to appeal.

 As to the provincial power of a trial judge to reserve or refer matters to an appellate court, see Arnold v

Arnold (–),  NSR  (CA); Iantsis v Papatheodorou (),  RFL  (Ont CA).