Appeals

• Jurisdiction: Canada
• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

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Chapter 11

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 def‌inition is relevant to the operation of

sections 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 appeals has been delegated to the provinces.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 proceedings being exercised by tribunals other than those

presided over by federally appointed judges, some f‌lexibility exists for the

provinces to select the appropriate appellate court in exercising their legis-

lative 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 judg-

ment or order, whether f‌inal or interim, made pursuant to the Act. Sections

1 As to the provincial power of a trial judge to reserve or refer matters to an appellate

court, see Arnold v Arnold (1965–69), 2 NSR 348 (CA); Iantsis v Papatheodorou (1971), 3

RFL 158 (Ont CA).