D. Restrictions on Corollary Order Appeals

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 588-592

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In British Columbia and Saskatchewan, it has been held that section 21 provides an automatic right to appeal corollary orders under the Divorce Act that prevails over any conflicting provincial legislation which requires leave to appeal.⁴In Nova Scotia, it has been held that a consent order for corollary support requires leave to appeal to the Court of Appeal pursuant to section 39 of the Judicature Act.⁵In Ontario, it has been held that interim corollary orders under the Divorce Act require leave to appeal to the Divisional Court pursuant to section 19(1)(b) of the Courts of Justice Act.⁶The Ontario Court of Appeal reasoned that section 21(1) of the Divorce Act establishes the right to appeal an interim order but it must be read in light of section 21(6) of the Divorce Act, which stipulates that "an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals," and having regard also to section 25, which empowers the provinces "to make rules regulating practice and procedure." And in Ontario, the "ordin-

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ary procedure" for appealing an interlocutory order is governed by section 19(1) of the Courts of Justice Act, which provides that "[a]n appeal lies to the Divisional Court from . . . (b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court." Addressing the conjoint operation of section 21 of the Divorce Act and section 19(1) of the Courts of Justice Act, the Ontario Court of Appeal determined that the doctrine of paramountcy is not engaged because there is no operational incompatibility between the federal and provincial legislative provisions. Applying the test of incompatibility set out in Canadian Western Bank v Alberta⁷ as to whether it is impossible to comply simultaneously with both laws or whether the operation of the provincial law would frustrate the purpose of the federal legislation, the Ontario Court of Appeal observed that due compliance with both statutes is accommodated by a party seeking leave to appeal pursuant to section 19(2)(b) of the Courts of Justice Act. Pursuant to the conjoint operation of subsections 21(1) and 21(6) of the Divorce Act, RSC 1985, c 3 (2nd Supp) and articles 29 and 511 of the Code of Civil Procedure, RSQ, c C-25, an appeal from an interlocutory judgment rendered in the context of a divorce proceeding in Quebec requires leave of the court, regardless of the subject matter and object of the interlocutory proceeding and whether it relates to the interpretation of a provision of the Divorce Act.⁸In reaching this conclusion, the Quebec Court of Appeal accepted the analysis of the Ontario Court of Appeal in Elgner v Elgner.⁹Subject to section 21(4) of the Divorce Act, section 21(3) prohibits any appeal from an interim or final order for corollary relief, unless the appeal is instituted within thirty days after the day on which the order was made. The statutory requirements are satisfied if the appeal is filed on the thirtieth day, but the hearing is fixed for a subsequent date.¹⁰The Manitoba Court of Appeal has held that the time fixed by section 21(3) for filing a notice of appeal with respect to a corollary issue in divorce proceedings runs from the date of entry, not from the date of pronouncement of the order. In matters relating to corollary relief orders, it makes more sense for time to run from the date of entry and not from the date of pronouncement of the judgment because a trial judge has the privilege of varying his decision until the moment of entry so that variations in the

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order can and do sometimes occur at the last minute.¹¹As Baird JA, of the Manitoba Court of Appeal, observed in Singh v Pierpont, "[i]t is important to note that the requirement that an order be "entered" in the court granting the order...