Chat with us, powered by LiveChat

Family Law Rules – Rule 38: Appeals

Angela Princewill

November 21, 2015

RULE 38:  APPEALS

RULES THAT APPLY IN APPEALS TO DIVISIONAL COURT AND COURT OF APPEAL

38. (1) Rules 61, 62 and 63 of the Rules of Civil Procedure apply with necessary changes, including those modifications set out in subrules (2) and (3),

(a) if an appeal lies to the Divisional Court or the Court of Appeal;

(b) if leave to appeal to the Divisional Court or the Court of Appeal is required,

in a family law case as described in subrule 1 (2).  O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (1).

MODIFICATIONS IN CHILD PROTECTION APPEALS

(2) If the appeal is brought in a case under the Child and Family Services Act, the following time periods apply instead of the time periods mentioned in the referenced provisions of the Rules of Civil Procedure:

1. The time period referred to in clause 61.09 (1) (a) shall be 14 days after filing the notice of appeal if there is no transcript.

2. The time period referred to in clause 61.09 (1) (b) shall be 30 days after receiving notice that the evidence has been transcribed.

3. The time period referred to in clause 61.12 (2) shall be 30 days after service of the appeal book and compendium, exhibit book, transcript of evidence, if any, and appellant’s factum.

4. The time period referred to in clause 61.13 (2) (a) shall be 30 days after the registrar receives notice that the evidence has been transcribed.

5. The time period referred to in clause 61.13 (2) (b) shall be six months after filing the notice of appeal.

6. The time period referred to in subrule 62.02 (2) for serving the notice of motion for leave to appeal shall be 30 days.  O. Reg. 89/04, s. 13; O. Reg. 76/06, s. 10 (1).

APPEAL OF TEMPORARY ORDER IN CHILD AND FAMILY SERVICES ACT CASE

(3) In an appeal of a temporary order made in a case under the Child and Family Services Act and brought to the Divisional Court under clause 19 (1) (b) of the Courts of Justice Act, the motion for leave to appeal shall be combined with the notice of appeal and heard together with the appeal.  O. Reg. 89/04, s. 13.

APPEALS TO THE SUPERIOR COURT OF JUSTICE

(4) Subrules (5) to (45) apply to an appeal from an order of the Ontario Court of Justice to the Superior Court of Justice under,

(a) section 48 of the Family Law Act;

(b) section 73 of the Children’s Law Reform Act;

(c) sections 69 and 156 of the Child and Family Services Act;

(d) section 40 of the Interjurisdictional Support Orders Act, 2002;

(e) section 40 of the Courts of Justice Act; and

(f) any other statute to which these rules apply, unless the statute provides for another procedure.  O. Reg. 89/04, s. 13.

HOW TO START APPEAL

(5) To start an appeal from a final order of the Ontario Court of Justice to the Superior Court of Justice under any of the provisions listed in subrule (4), a party shall,

(a) within 30 days after the date of the order or decision being appealed from, serve a notice of appeal (Form 38) on,

(i) every other party affected by the appeal or entitled to appeal,

(ii) the clerk of the court in the place where the order was made, and

(iii) if the appeal is under section 69 of the Child and Family Services Act, every other person entitled to notice under subsection 39 (3) of that Act who appeared at the hearing; and

(b) within 10 days after serving the notice of appeal, file it.  O. Reg. 89/04, s. 13; O. Reg. 140/15, s. 5.

STARTING APPEAL OF TEMPORARY ORDER

(6) Subrule (5) applies to the starting of an appeal from a temporary order of the Ontario Court of Justice to the Superior Court of Justice except that the notice of appeal shall be served within seven days after the date of the temporary order.  O. Reg. 89/04, s. 13.

SAME, CHILD AND FAMILY SERVICES ACT CASE

(7) To start an appeal from a temporary order of the Ontario Court of Justice to the Superior Court of Justice in a case under theChild and Family Services Act, subrule (5) applies and the notice of appeal shall be served within 30 days after the date of the temporary order.  O. Reg. 89/04, s. 13.

NAME OF CASE UNCHANGED

(8) The name of a case in an appeal shall be the same as the name of the case in the order appealed from and shall identify the parties as appellant and respondent.  O. Reg. 89/04, s. 13.

APPEAL BY RESPONDENT

(9) If the respondent in an appeal also wants to appeal the same order, this rule applies, with necessary changes, to the respondent’s appeal, and the two appeals shall be heard together.  O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (1).

GROUNDS STATED IN NOTICE OF APPEAL

(10) The notice of appeal shall state the order that the appellant wants the appeal court to make and the legal grounds for the appeal.  O. Reg. 89/04, s. 13.

OTHER GROUNDS

(11) At the hearing of the appeal, no grounds other than the ones stated in the notice of appeal may be argued unless the court gives permission.  O. Reg. 89/04, s. 13.

TRANSCRIPT OF EVIDENCE

(12) If the appeal requires a transcript of evidence, the appellant shall, within 30 days after filing the notice of appeal, file proof that the transcript has been ordered.  O. Reg. 89/04, s. 13.

CONSULTATION WITH RESPONDENT

(13) The appellant shall determine if the appeal requires a transcript of evidence in consultation with the respondent.  O. Reg. 89/04, s. 13.

AGREEMENT ON EVIDENCE TO BE TRANSCRIBED

(14) If the appellant and respondent agree about what evidence needs to be transcribed, the appellant shall order the agreed evidence transcribed.  O. Reg. 89/04, s. 13.

NO AGREEMENT

(15) If the appellant and respondent cannot agree, the appellant shall order a transcript of all of the oral evidence from the hearing of the decision under appeal unless the court orders otherwise.  O. Reg. 89/04, s. 13.

ONCE TRANSCRIPT COMPLETED

(16) When the authorized court transcriptionist has completed the transcript, he or she shall promptly notify the appellant, the respondent and the court office in the court where the appeal will be heard. O. Reg. 142/14, s. 13 (2).

CONTENTS OF APPELLANT’S APPEAL RECORD

(17) The appellant’s appeal record shall contain a copy of the following documents, in the following order:

1. A table of contents describing each document, including each exhibit, by its nature and date and, for an exhibit, by exhibit number or letter.

2. The notice of appeal.

3. The order being appealed, as signed, and any reasons given by the court appealed from, as well as a further printed copy of the reasons if they are handwritten.

4. A transcript of the oral evidence.

5. Any other material that was before the court appealed from and that is necessary for the appeal.  O. Reg. 89/04, s. 13.

CONTENTS OF APPELLANT’S FACTUM

(18) The appellant’s factum shall be not more than 30 pages long, shall be signed by the appellant’s lawyer or, if none, by the appellant and shall consist of the following parts, containing paragraphs numbered consecutively from the beginning to the end of the factum:

1. Part 1: Identification. A statement identifying the appellant and respondent and the court appealed from, and stating the result in that court.

2. Part 2: Overview. A brief overview of the case and the issues on the appeal.

3. Part 3: Facts. A brief summary of the facts relevant to the appeal, with reference to the evidence by page and line as necessary.

4. Part 4: Issues. A brief statement of each issue, followed by a brief argument referring to the law relating to that issue.

5. Part 5: Order. A precise statement of the order the appeal court is asked to make, including any order for costs.

6. Part 6: Time estimate. An estimate of how much time will be needed for the appellant’s oral argument, not including reply to the respondent’s argument.

7. Part 7: List of authorities. A list of all statutes, regulations, rules, cases and other authorities referred to in the factum.

8. Part 8: Legislation. A copy of all relevant provisions of statutes, regulations and rules.  O. Reg. 89/04, s. 13.

RESPONDENT’S FACTUM AND APPEAL RECORD

(19) The respondent shall, within the timeline set out in subrule (21) or (22), serve on every other party to the appeal and file,

(a) a respondent’s factum (subrule (20)); and

(b) if applicable, a respondent’s appeal record containing a copy of any material that was before the court appealed from which are necessary for the appeal but are not included in the appellant’s appeal record.  O. Reg. 89/04, s. 13.

CONTENTS OF RESPONDENT’S FACTUM

(20) The respondent’s factum shall be not more than 30 pages long, shall be signed by the respondent’s lawyer or, if none, by the respondent and shall consist of the following parts, containing paragraphs numbered consecutively from the beginning to the end of the factum:

1. Part 1: Overview. A brief overview of the case and the issues on the appeal.

2. Part 2: Facts. A brief statement of the facts in the appellant’s factum that the respondent accepts as correct and the facts that the respondent says are incorrect, and a brief summary of any additional facts relied on by the respondent, with reference to the evidence by page and line as necessary.

3. Part 3: Issues. A statement of the respondent’s position on each issue raised by the appellant, followed by a brief argument referring to the law relating to that issue.

4. Part 4: Additional issues. A brief statement of each additional issue raised by the respondent, followed by a brief argument referring to the law relating to that issue.

5. Part 5: Order. A precise statement of the order the appeal court is asked to make, including any order for costs.

6. Part 6: Time estimate. An estimate of how much time will be needed for the respondent’s oral argument.

7. Part 7: List of authorities. A list of all statutes, regulations, rules, cases and other authorities referred to in the factum.

8. Part 8: Legislation. A copy of all relevant provisions of statutes, regulations and rules not included in the appellant’s factum.  O. Reg. 89/04, s. 13.

TIMELINES FOR SERVING AND FILING OF RECORDS AND FACTUMS OTHER THAN IN CHILD AND FAMILY SERVICES ACT CASES

(21) Except for appeals in cases under the Child and Family Services Act, the following timelines for serving appeal records and factums apply:

1. If a transcript is required, the appellant’s appeal record and factum shall be served on the respondent and any other person entitled to be heard in the appeal and filed within 60 days from the date of receiving notice that evidence has been transcribed.

2. If no transcript is required, the appellant’s appeal record and factum shall be served on the respondent and any other person entitled to be heard in the appeal and filed within 30 days of filing of the notice of appeal.

3. The respondent’s appeal record and factum shall be served on the appellant and any other person entitled to be heard on the appeal and filed within 60 days from the serving of the appellant’s appeal record and factum.  O. Reg. 89/04, s. 13.

TIMELINES FOR SERVING AND FILING OF RECORDS AND FACTUMS IN CHILD AND FAMILY SERVICES ACT CASES

(22) For appeals of cases under the Child and Family Services Act, the following timelines for serving appeal records and factums apply:

1. If a transcript is required, the appellant’s appeal record and factum shall be served on the respondent and any other person entitled to be heard in the appeal and filed within 30 days from the date of receiving notice that evidence has been transcribed.

2. If no transcript is required, the appellant’s appeal record and factum shall be served on the respondent and any other person entitled to be heard in the appeal and filed within 14 days of filing of the notice of appeal.

3. The respondent’s appeal record and factum shall be served on the appellant and any other person entitled to be heard on the appeal and filed within 30 days from the serving of the appellant’s appeal record and factum.  O. Reg. 89/04, s. 13.

SCHEDULING OF HEARING

(23) When the appellant’s appeal record and factum have been filed and the respondent’s factum and appeal record, if any, have been filed, or the time for their filing has expired, the clerk shall schedule the appeal for hearing.  O. Reg. 89/04, s. 13.

PROMPT HEARING OF CFSA APPEALS

(24) An appeal under the Child and Family Services Act shall be heard within 60 days after the appellant’s factum and appeal record are filed.  O. Reg. 76/06, s. 10 (2).

MOTIONS IN APPEALS

(25) If a person needs to bring a motion in an appeal, rule 14 applies with necessary changes to the motion.  O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (3).

SECURITY FOR COSTS OF APPEAL

(26) On a motion by the respondent for security for costs, the court may make an order for security for costs that is just, if it is satisfied that,

(a) there is good reason to believe that the appeal is a waste of time, a nuisance, or an abuse of the court process and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under subrule 24 (13); or

(c) for other good reason, security for costs should be ordered.  O. Reg. 89/04, s. 13.

DISMISSAL FOR FAILURE TO OBEY ORDER

(27) If an appellant does not obey an order under subrule (26), the court may on motion dismiss the appeal.  O. Reg. 89/04, s. 13.

MOTION FOR SUMMARY JUDGMENT IN APPEAL

(28) After the notice of appeal is filed, the respondent or any other person who is entitled to be heard on the appeal may make a motion for summary judgment or for summary decision on a legal issue without a hearing of the appeal, and rule 16 applies to the motion with necessary changes.  O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (3).

MOTION TO RECEIVE FURTHER EVIDENCE

(29) Any person entitled to be heard in the appeal may bring a motion to admit further evidence under clause 134 (4) (b) of theCourts of Justice ActO. Reg. 89/04, s. 13.

MOTION FOR DISMISSAL FOR DELAY

(30) If the appellant has not,

(a) filed proof that a transcript of evidence was ordered under subrule (12);

(b) served and filed the appeal record and factum within the timelines set out in subrule (21) or (22) or such longer time as may have been ordered by the court,

the respondent may file a motion form (Form 14B) to have the appeal dismissed for delay.  O. Reg. 89/04, s. 13; O. Reg. 69/15, s. 14.

WITHDRAWAL OF APPEAL

(31) The appellant may withdraw an appeal by serving a notice of withdrawal (Form 12) on every other party and filing it.  O. Reg. 89/04, s. 13.

DEEMED WITHDRAWAL

(32) If a person serves a notice of appeal and does not file it within 10 days as required by clause (5) (b), the appeal shall be deemed to be withdrawn unless the court orders otherwise.  O. Reg. 89/04, s. 13.

AUTOMATIC STAYS PENDING APPEAL, SUPPORT ORDERS

(33) The service of a notice of appeal from a temporary or final order does not stay a support order or an order that enforces a support order.  O. Reg. 89/04, s. 13.

OTHER PAYMENT ORDERS

(34) The service of a notice of appeal from a temporary or final order stays, until the disposition of the appeal, any other payment order made under the temporary or final order.  O. Reg. 89/04, s. 13; O. Reg. 76/06, s. 10 (3).

STAY BY ORDER OF COURT

(35) A temporary or final order may be stayed on any conditions that the court considers appropriate,

(a) by an order of the court that made the order;

(b) by an order of the Superior Court of Justice.  O. Reg. 89/04, s. 13.

EXPIRY OF STAY GRANTED BY COURT THAT MADE ORDER

(36) A stay granted under clause (35) (a) expires if no notice of appeal is served and the time for service has expired.  O. Reg. 89/04, s. 13.

POWERS OF SUPERIOR COURT OF JUSTICE

(37) A stay granted under subrule (35) may be set aside or changed by the Superior Court of Justice.  O. Reg. 89/04, s. 13.

EFFECT OF STAY GENERALLY

(38) If an order is stayed, no steps may be taken under the order or for its enforcement, except,

(a) by order of the Superior Court of Justice; or

(b) as provided in subrules (39) and (40).  O. Reg. 89/04, s. 13.

SETTLING OF ORDER

(39) A stay does not prevent the settling or signing of the order.  O. Reg. 89/04, s. 13.

WRIT OF EXECUTION

(40) A stay does not prevent the issue of a writ of seizure and sale or the filing of the writ in a sheriff’s office or land registry office, but no instruction or direction to enforce the writ shall be given to a sheriff while the stay remains in effect.  O. Reg. 89/04, s. 13.

CERTIFICATE OF STAY

(41) If an order is stayed, the clerk of the court that granted the stay shall, if requested by a party to the appeal, issue a certificate of stay in Form 63A under the Rules of Civil Procedure with necessary changes.  O. Reg. 89/04, s. 13; O. Reg. 142/14, s. 13 (3).

STAY OF SUPPORT ORDER

(42) A party who obtains a stay of a support order shall obtain a certificate of stay under subrule (41) and file it immediately in the office of the Director of the Family Responsibility Office if the stay relates to a support order being enforced by the Director.  O. Reg. 89/04, s. 13.

CERTIFICATE FILED WITH SHERIFF’S OFFICE

(43) If a certificate of stay is filed with the sheriff’s office, the sheriff shall not begin or continue enforcement of the order until satisfied that the stay is no longer in effect.  O. Reg. 89/04, s. 13.

REQUEST FOR CERTIFICATE

(44) A request for a certificate of stay under subrule (41) shall state whether the stay is under subrule (34) or by order under subrule (35) and, if under subrule (35), shall set out the particulars of the order.  O. Reg. 89/04, s. 13.

SETTING ASIDE WRIT OF EXECUTION

(45) The court may set aside the issue or filing of a writ of seizure and sale if the party making the motion or the appellant gives security satisfactory to the court.  O. Reg. 89/04, s. 13.

APPEALS, FAMILY ARBITRATION AWARDS

(46) Subrules (5), (8) to (21), (23) and (25) to (32) apply, with necessary changes, including the modifications set out in subrules (47) to (55), to the appeal of a family arbitration award under section 45 of the Arbitration Act, 1991 and, for the purpose,

(a) a reference to the Ontario Court of Justice or to the court being appealed from shall be read as a reference to the arbitrator who made the family arbitration award; and

(b) a reference to the order or decision being appealed from shall be read as a reference to the family arbitration award. O. Reg. 388/12, s. 10; O. Reg. 142/14, s. 13 (3).

SAME, SERVICE

(47) In addition to the persons listed under clause (5) (a), the appellant shall serve the notice of appeal on the arbitrator. O. Reg. 388/12, s. 10.

SAME, CONTENTS OF APPELLANT’S APPEAL RECORD

(48) The material referred to in paragraph 5 of subrule (17) shall include,

(a) copies of the certificates of independent legal advice required by the Family Law Act for the parties;

(b) a copy of the family arbitration agreement; and

(c) the original family arbitration award or a certified copy. O. Reg. 388/12, s. 10.

SAME, IF LEAVE REQUIRED

(49) If the appeal of a family arbitration award requires the leave of the court, rule 14 applies, with necessary changes, including the modifications set out in subrules (50) to (55), to the motion for leave to appeal, other than subrules 14 (4), (4.2), (6), (7), (10) to (15) and (17). O. Reg. 388/12, s. 10; O. Reg. 142/14, s. 13 (3).

SAME

(50) The notice of motion (Form 14) shall,

(a) be served on every other party affected by the appeal or entitled to appeal and on the arbitrator no later than 15 days after the making of the family arbitration award; and

(b) be filed no later than five days after service. O. Reg. 388/12, s. 10.

SAME

(51) The affidavit (Form 14A) and any additional evidence mentioned in clause 14 (9) (b) shall be served and filed no later than 30 days after the filing of the notice of motion for leave to appeal, together with,

(a) a copy of the notice of motion;

(b) the documents listed in subrule (48); and

(c) a factum consisting of a concise argument stating the facts and law relied on by the party making the motion. O. Reg. 388/12, s. 10.

SAME

(52) The notice of motion and factum shall set out the specific questions that it is proposed the court should answer on appeal if leave to appeal is granted. O. Reg. 388/12, s. 10.

SAME

(53) Any response to the motion for leave to appeal by a party shall be served and filed no later than 15 days after the materials referred to in subrule (51) were served on the party. O. Reg. 388/12, s. 10.

SAME

(54) The clerk shall fix a date for the hearing of the motion, which shall not, except with the consent of the party responding to the motion, be earlier than 15 days after the filing of the materials referred to in subrule (51). O. Reg. 388/12, s. 10.

SAME

(55) If leave to appeal is granted,

(a) the notice of appeal shall be served no later than seven days after the granting of leave; and

(b) the 30-day deadline set out in clause (5) (a) does not apply, but the filing deadline set out in clause (5) (b) continues to apply. O. Reg. 388/12, s. 10.

Share With