E. Role and Powers of Appellate Court

Author:Julien D. Payne - Marilyn A. Payne

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Section 21(5) of the Divorce Act expressly empowers an appellate court to (a) dismiss the appeal, or (b) allow the appeal and (i) render the appropriate judgment or corollary order that should have been made,25or (ii) order a new hearing where this is necessary to avoid a substantial wrong or miscarriage of justice or to bring forth additional information.26Where a refusal to grant child care expenses under section 7(1)(a) of the Guidelines is reversed on appeal, the appellate court may conclude that it is impractical to remit the issue of the amount to the trial judge because of the costs involved. In that event, the appellate court may leave it open to the parties to agree upon the appropriate amount in light of current financial information available to them, while ordering that a fixed monthly sum shall be paid in the absence of agreement.

Appellate courts should not overturn support orders, unless there is an error of principle, a significant misapprehension of the evidence, or the order is clearly wrong.27It is not for the appellate court to intervene by substituting

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its own evaluative judgment for that of the trial judge.28An appellate court is not precluded from identifying errors in the trial judge’s findings of fact where those findings are sufficiently palpable and important and have a sufficiently decisive effect that they warrant appellate intervention and review.29

It is not sufficient, however, to identify errors in the details of the findings of fact made by the judge of first instance, if the overall characterization of the effect of the facts is correct in law.30Insofar as the Federal Child Support Guidelines are mandatory and not permissive, an appellate court is required to intervene where the trial judge made an error of law in not addressing the issues according to the Guidelines.31The exercise of discretion by a Master on a question of fact should not be disturbed on appeal unless it was "clearly wrong," but a judge sitting on appeal on a point of law from a Master has a conventional appellate jurisdiction in which the legal issue may be argued and decided on the merits.32While disapproving the procedure, an appellate court may find no reversible error in the trial judge’s decision not to allow evidence on all issues in dispute.33An appeal may be allowed in part where the evidence before the trial court was insufficiently clear with respect to expenses sought pursuant to section 7 of the...

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