B. General Observations

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 573-574

573

 

APPEALS

A. DEFINITION OF “APPELLATE COURT”

Section () of the Divorce Act provides that “appellate court,” in respect of an appeal f rom

a court, means the cour t exercising appellate jurisdiction with respect to that appeal.” is

def‌inition is relevant to the operation of sections  and () of the Act. An examination

of the aforementioned provisions indicates that the determination of the appropriate ap-

pellate court and the procedure applicable on appeals has be en delegated to the provinces.

Although section  of the Co nstituti on Act, 1867 bind s 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 f‌lexibility exis ts for the provinces to select t he appropriate appellate court in exercis-

ing their legislative jurisd iction 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 coroll ary relief.

B. GENERAL OBSERVATIONS

Section () of the Divorce Act confers a general right to appeal from any judgment or or-

der, whether f‌inal or interim, made pursuant to the Act. Sections (), (), and (), however,

impose restrictions on the right of appeal, which vary according to whether the appeal re-

lates to the judgment qua marital statu s or to interim or f‌ina l corollary orders. e right of

 As to the provinci al power of a trial judge to reser ve or refer matters to an appellate cour t, see Arnold v.

Arnold (–),  N.S.R.  (C.A.); Iantsis v. Papatheo dorou (),  R.F.L.  (Ont. C. A.).

 See Colletta v. Colletta (),  R.F.L. (d)  (Ont. C.A.), wherein it w as held that an appeal solely

respecting i nterim relief lies to the Div isional Court under s. ()(b) of the Courts of Just ice Act, R.S.O.

, c. C., with leave as provid ed by the Rules of Civil Procedure, but a n appeal with respect to b oth

the divorce and coroll ary relief, whether interi m or f‌inal, lies to the Cour t of Appeal under s. ().

Compare Swift v. Swift (),  O.A.C.  (Div. Ct.). As to leave to appeal, see Section D, below in t his

chapter.