If you have received an unsatisfactory family court decision in Ontario, you may wonder if there is an appeals process you can follow.
In most cases, a person is entitled to appeal, but that does not guarantee that the decision will be reversed.
To be granted, an appeal requires that the original decision was made by error. It is important to remember that when a higher court looks at the same evidence provided in lower courts, they will usually agree with the lower court, and the decision will be upheld.
This means that the appeals court will not overturn the decision unless blatant wrong is found in the decision-making process – this is known as “palpable and overriding error.” There must be a reason for an appeal, and while you can’t appeal a decision just because you don’t like it, there are instances where wrongdoing might have unfairly swayed the process.
If you are considering an appeal, or want to know how to appeal a family court order in Ontario, there are some things you need to know first.
Here’s a quick look at some of the things you need to know about appealing family court orders.
What is an Appeal?
An appeal is a review of a court decision made by another appellate court, a trial court, or a tribunal. During the appeals process, the appellate court may affirm, alter, or set aside the original court decision.
Typically, when a judge or justice finishes a court case, they will make their decision and provide reasons for that decision. If you disagree with a family court order from an Ontario judge or justice, you may be able to file an appeal with the Court of Appeal. Occasionally, the Court of Appeal grants new trials or hearings for one or both parties in a case.
The appeals court is an essential party to the litigation process. It offers a level of scrutiny that includes looking at the trial transcript, evidence, and other materials to determine if certain mistakes were made. An appeal also provides a second opportunity to make sure justice is done.
Contrary to popular belief, an appeal in the Court of Appeal for Ontario is a check for errors in a trial rather than a re-trial of the same case. In appeals, the person who lost the trial argues that the judge made an error. If you are appealing a judge’s decision, it’s important to point out the mistakes that you believe they made with this case.
The Court of Appeal cannot overrule another court’s decision simply because they disagree. The trial judge gets to decide on the sentence. The Court of Appeal must be sure that the trial court has made a mistake about the law or misunderstood evidence. Otherwise, they cannot overturn it.
Depending on the situation, the Court of Appeals can deny or affirm the decision made by the original trial court, reverse it, thereby ordering a new trial, or change the decision, meaning they’ll alter the original trial court decision.
Appealing family court orders is possible, but it’s essential to understand the difference between temporary and final decisions. For a temporary decision, some cases require leave to file an appeal. So there are two options for seeking redress. One way is to apply for an appeals board after meeting a set of criteria (you’ll have to have three people do this). The other way is to appeal as of right, which means you can do it without any conditions.
Typically, on appeal, you can only rely on the same facts that you relied on at the original trial. The appeal court generally only reviews and weighs the evidence introduced at the initial trial or motion.
Should fresh evidence arise that is related to the best interests of a child, evidence that was not available at the original trial, the court may allow you to introduce this new evidence by filing a motion to the panel hearing the case.
How To Appeal a Custody Order in Ontario
In cases where there is a disagreement over custody or child support or where the Children’s Aid Society must intervene to prevent harm to the child, a court may need to make the call.
The courts use complex family law statutes and regulations to determine what is best for a child. They assess the situation, consider your child’s needs, and consider several other factors. It can be complicated and overwhelming for parents, so it is best to hire a lawyer specializing in family law to guide you through the process.
If you are having a custody battle in Ontario, the judge will use the procedures of law to make a decision. Depending on the situation, the Divorce Act and The Children’s Law Reform Act will apply as follows:
- Married parents who decide to end their relationship will generally see the court bring in the Divorce Act. The Divorce Act states that the courts must consider the child(ren)’s best interests regarding custody.
- Unmarried parents who split usually see The Children’s Law Reform Act used by the court. It contains many provisions that need to be considered by a judge before deciding about children concerning their parents who live separately.
As mentioned, the Children’s Aid Society may work to intervene in situations or prevent further harm from happening to a child. If the Children’s Aid Society is involved in your case, they may:
- Begin the process for a child protection order
- Seek a child protection order from a judge
A child protection order sets out who should care for a child in a way that’s appropriate to meet their best interests.
You can request an appeal if you disagree with a judge’s decision regarding a child custody order. This means you want another judge to review the case because of mistakes made during the trial.
There is a strict deadline for submitting your appeal, so be sure to follow it to maintain an opportunity to prove your case. You have 30 days to file an appeal.
If this deadline is missed, a court may be able to provide more time. However, additional time will only be granted if the court can see legitimate reasons why the original deadline could not be met.
When appealing a child protection order, the timelines are a little different.
- If no oral transcript of evidence is required, the appellant (the party filing the appeal) must perfect the appeal within 14 days. This means that all the documents needed to hear the appeal must be served and filed with the court with proof of service within 14 days.
- If no oral transcript of evidence is required, the appellant must perfect the appeal within 30 days of being notified that the transcript of oral evidence has been transcribed.
Appealing a family court child custody order can be a complex process. If you’re lost and need help knowing where to start, you should contact a lawyer specializing in child custody cases.
When Will My Family Law Appeal Be Heard?
While you have 30 days to file your family law appeal, it does not mean that the appeal will be heard in 30 days.
Family law appeals generally take 3-4 months from the date of perfection. That is 3-4 months from the date all the required materials have been filed with the court.
The sooner you perfect your appeal, the sooner the case may be heard.
It can be tough when two people decide to end their relationship. Figuring out how you will split your assets, where you will live, and what arrangements will be made for any children is not easy.
Trying to sort out your family law or custody issues can be a drain for you, both financially and mentally. If you want to appeal, it’s crucial to consider many factors. For instance, if the case is appealable or whether deadlines have been missed. A responsible family lawyer will help you with this, managing the appeals process from start to finish.
To best protect your interests, you should have strong representation. RBHF Professional Corporation’s family lawyers have all the experience you need to make an informed decision about whether or not to proceed with an appeal. When deciding, we consider all aspects of your case, provide context, and let you know whether you have a good chance of getting the decision overturned. We review all relevant information and the most critical parts of the law to tell you with certainty whether or not there is a reason for hope.
Contact us for more information or to see how we can help your family law case today.