G. Denial of Appeal; Motion to Dismiss Appeal; Reinstatement of Appeal

Author:Julien D. Payne - Marilyn A. Payne

Page 594

A spouse, who is in default under a support order, may be denied an audience in the Court of Appeal while he or she remains in contempt.41It is the practice of the British Columbia Court of Appeal not to hear appeals unless a convincing explanation is given for non-compliance with a subsisting court order. An exception may be admitted where the interests of justice require the appellate court to make a ruling on an unsettled question in order to avoid the expense of further litigation.42Where the effluxion of time before the appeal is heard renders it appropriate, the appellate court may remit the issues of spousal and child support

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to the trial court for a new hearing on up-to-date evidence. Pending the resolution of the matter in the trial court, the appellate court may order interim periodic spousal and child support, but may also direct that the interim order is purely a stop-gap measure and that it should not be taken as a guide to the proper order for the trial judge to make.43An appellant who complies with the Rules of Court can pursue an appeal notwithstanding delay and the alleged impracticality of the appeal. It is only when an appeal is clearly moot or hopeless that it will be summarily dismissed. The normal remedy for improbable appeals lies in costs.44An order to restore an appeal struck from the list is discretionary. Where the appeal appears to have been struck through the inadvertence of counsel and the matter is dealt with fairly, quickly, and responsibly thereafter, an order may be granted restoring the appeal to the list, unless the appeal is found to lack merit and the onus of proving this falls on the party who opposes the restoration application.45

[41] Cyr v Cassista (1986), 50 RFL (2d) 33 (NBCA).

[42] Kowalewich v Kowalewich, [2001] BCJ No 1406 (CA) (successful appellant denied costs by reason of his failure to pay money owing under court orders which produced a financial strain on the respondent’s resources).

[43] Forbes v Forbes (1994), 5 RFL (4th) 79 (BCCA).

[44] Starko v...

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