D. Restrictions on Corollary Order Appeals

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 574-577

574 CHILD SU PPORT GUIDELINES IN CA NADA, 2012

appeal provided by the Divorce Act prevails over any limitations or restrictions that might

otherwise arise pursuant to a provincial statute or rules of court.3 A non-party is not en-

titled to appea l.

C. RESTRICTIONS ON STATUS APPEALS

Pursuant to sections 12(3), (4), (5), and 21(2) of the Divorce Act, no appeal lies from a judg-

ment granting a divorce once the time f‌ixed by law for instituting an appeal has expired,

unless an extension of the time for appeal has been sought or granted before expiry of the

normal period f‌ixed by law for instituti ng an appeal.4

Although section 21(2) expressly denies any right of appeal from a judgment granting

a divorce on or after the divorce takes ef‌fect pursuant to section 12, it does not preclude

rescission of t he divorce judgment for proper cause.5

D. RESTRICTIONS ON COROLLARY ORDER APPEALS

In British Columbia, Quebec, 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

conf‌licti ng provincial leg islation which requi res leave to appeal.6 In Nova Scotia, it ha s been

held that a consent order for corollary support requires leave to appeal to the Court of Ap-

peal pursuant to section 39 of the Judicature Act. In Ontario, it has been held that interim

corollar y orders under the Divorce Act require leave to appeal to the Divisional Court pur-

suant to section 19(1)(b) of the Courts of Justice Act.7 e Ontario Cou rt 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 sha ll be asserted, heard and decided according to the ordinar y procedure

governing appeals,” and having regard al so to section 25 which empowers the provinces “ to

make rules regulating practice and procedure.” And in Ontario, the “ordinary 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 interlocu-

tory 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

3 Haigh v. Haigh (1987), 15 B.C.L.R . (2d) 375 (C.A.); see also Kotelmach v. Mattison (1987), 11 R.F.L. (3d) 56

(Sask. C.A.); Bast v. Bast (1990), 30 R.F.L. (3d) 181 (Sask. C.A.); Rimmer v. Adsh ead, 2003 SKCA 19; com-

pare Colletta v. Colletta, ibid.; see Potts v. Potts (1993), 47 R.F.L. (3d) 182 (Ont. Div. Ct.).

4 Compare Massicotte v. Bout in, [1969] S.C.R. 818; Kumpa s v. Kumpas, [1970] S.C.R. 438 and Novi c v. Novic,

[1983] 1 S.C.R. 700, 36 R.F.L. (2d) 337, applying s. 18(2) of the Divorce Act, 1968; and see current D ivorce

Act, s. 21(6).

5 See Julien D. Payne, Payne on D ivorce, 4th ed. (Scarborough, ON: Ca rswell, 1996) c. 6, “Divorce Judg-

ments,” part 1, “Ef‌fect ive Date of Divorce Judgment; Appeals; Res cission of Divorce Judgment.”

6 Haigh v. Haigh (1987), 15 B.C.L.R. (2d) 375 (C.A.); DeFeh r v. DeFehr, 2002 BCCA 577; K. (H.) c. S.(D.) (198 8),

18 R.F.L. (3d) 66 (Que. C.A.); Droit de la fa mille – 09771, 2009 QCCA 649; Kotelmach v. Mattiso n (1987),

11 R.F.L. (3d) 56 (Sask C.A.); Rimmer v. Adshe ad, 2003 SKCA 19.

7 Elgner v. Elgner, 2011 ONCA 483.