H. Effect of Appeal

AuthorJulien D. Payne - Marilyn A. Payne
Pages579-580
Appeals 579
In Ontario, leave to appeal an interim order for child support lies to the Divisional
Court, not the Court of Appeal. Rule 62.02(2) of the Ontario Rules of Civil Procedure pro-
vides a time limit of seven days for service of the notice of motion for leave. A self-repre-
sented litigant, like a legally represented litigant, is bound by the Ontario Rules of Civil
Procedure, and will not be granted an extension of time where no satisfactory explanation
for the delay is furnished.41
G. DENIAL OF APPEAL; MOTION TO DISMISS APPEAL;
REINSTATEMENT OF APPEAL
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.42 It is the practice of the British Columbia
Court of Appeal not to hear appeals u nless a convincing explanation is given for non-com-
pliance with a subsisting court order. An exception may be admitted where the interests
of justice require the appellate court to ma ke a ruling on an u nsettled question in order to
avoid the expense of further litigation.43
Where the ef‌f‌luxion of time before the appeal is heard renders it appropriate, the ap-
pellate court may remit the issues of spousal and child support to the tria l court for a new
hearing on up-to-date evidence. Pending the resolution of the matter in the tria l 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 g uide
to the proper order for the trial judge to make.44
An appellant who complies with the Rules of Court can pursue an appeal notwith-
standing 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. e normal remedy for im-
probable appeals lies in costs.45
An 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 thereaf ter, an order may be granted restoring t he appeal
to the list, unless t he appeal is found to lack merit and the onus of proving th is falls on the
party who opposes the restoration applic ation.46
H. EFFECT OF APPEAL
When an appeal is successful, the decision of the appellate court stands in the place of
the order or judgment appealed from and takes ef‌fect from the date of the original order
or judgment.47 Where the successful appeal involves the right to or amount of child sup-
port, the appellate court has jurisdiction under section 21 of the Divorce Act to direct that
41 Orser v. Grant, [2001] O.J. No. 24 (Div. Ct.).
42 Cyr v. Cassista (1986), 50 R.F.L. (2d) 33 (N.B.C.A.).
43 Kowalewich v. Kowalewich, [2001] B.C.J. No. 1406 (C.A.) (successf ul appellant denied cos ts by reason of
his failu re to pay money owing under court orders wh ich produced a f‌inancial st rain on the respondent’s
resources).
44 Forbes v. Forbes (1994), 5 R.F.L. (4th) 79 (B.C.C.A.).
45 Starko v. Starko (1991), 33 R.F.L. (3d) 277 (Alta. C.A.) (custo dy).
46 Kieser v. Kieser, [2003] A.J. No. 611 (C.A.).
47 Dennis v. Wilson, [1998] O.J. No. 4854 (C.A.).

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