What Happens When You Want to Appeal an Order Made Against You in Family Court

To appeal an order made against you in family court, you will need to convince the court to stay the order so as to ensure that the status quo immediately prior to the making of the order is preserved.

When considering whether to stay the order under appeal pending the outcome of the appeal, the court will apply a three-part test as follows:

Is there a serious issue to be tried?
Will there will be irreparable harm if a stay is refused?
Does the balance of convenience favour granting a stay of the order?

1. SERIOUS QUESTION TO BE TRIED

When determining whether there is a serious issue to be tried, you will only need to convince the court that your appeal has some merit and that it is arguable not frivolous.

2. IRREPARABLE HARM

Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured”, usually because one party cannot collect damages from the other. In family law cases, irreparable harm can be found when the best interests of the children involved may be compromised. In cases involving financial issues, where one party is impecunious and the effect of the order could not be “undone” after the hearing of the appeal, then irreparable harm may be found.

3. BALANCE OF CONVENIENCE

When considering the third part of the test, the court ought to consider which of the parties would suffer greater harm from the granting or refusing of the stay pending the appeal.

The three-part test has been used in British Columbia family law cases courts to ensure the best interests of the children are protected (see Harvey v. Pocock, 2018 BCSC 2139) and to ensure the financial status quo is preserved pending an appeal (see Zhou v. Fang, 2019 BCSC 2023), and is important to keep in mind if you are looking to appeal an order made against you in a family law matter.

If you or a loved one are in need of advice regarding appealing an order, consult Vancouver and Burnaby Family Law lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia at andrew@resolutionslawcorp.com or 778-372-7107.

So the Judge Ruled Against You…Now What?

Should you find yourself in a position where a judge has ruled against you and you wish to have that decision reviewed by a higher court then you must:

1. Take Immediate Steps to File the Necessary Appeal Documents

If you are seeking an appeal of a judge’s decision made at trial, you will have 30 days from the date of the judge’s decision to file with the court and effect service on the opposing party a document called a Notice of Appeal. The time limit is even shorter when appealing the interim decision of a master made in chambers. Accordingly, it is critical to seek the advice of experience legal counsel if you are displeased with a judge’s or master’s decision. Except in the rarest of cases, failure to comply with the time limits will mean that your right to appeal will be denied.

2. Understand the Appeal Process

The appeal from a judge’s decision does not afford you the opportunity to re-argue your entire case again in front of judges of a higher court but rather an appeal is an opportunity for you to convince a higher court to correct the error or errors the judge made when making the decision you are appealing from. To succeed at appeal, you must identify those errors and explain the nature and significance of these errors to the judges hearing the appeal.

It is also useful to remember that there are 2 sorts of errors that can be found in a trial judge’s decision. These errors are:

Errors of law: a mistake that is made by the court when it applies the law to the facts of your case. To establish an error of law, it is necessary to show that the judge was incorrect about a point of law and that the error made led to the decision that you wish to appeal from. As it is the primary job of an appellate court to correct a trial judge’s errors of law so that the law is being applied uniformly and correctly by all judges it is only necessary to show an error was made.
Errors of fact: a mistake that is made by the court when it misapprehends a fact and based upon that misapprehension the judge renders judgment. To be successful on an appeal based on an error of fact, it is necessary that you show the error is palpable and overriding. The reason for a relatively high threshold is that appeal judges are deferential to a trial judge’s findings of fact for the simple reason that the judge heard oral testimony from the witnesses and so is a better position to make findings of fact.

3. Be Prepared to Spend Money

While many appeals are heard in far less time than what a trial consumes, the filing fees, the ordering of transcripts of oral evidence given at trial, the amount of time your lawyer will spend researching the law and drafting written argument to submit to the appeal judges pointing out the errors made by the trial judge usually means an appeal will be at least $25,000 and if you lose you may be paying the responding side’s taxable legal costs.

4. Be Patient

While hearing dates for appeals are available on a much shorter time frame than those available for your trial, it will usually be at least 6 months from the date you filed your Notice of Appeal to the date of hearing and perhaps several months after the hearing date of your appeal until the appellate court will issue its decision.

Should you wish to have a judge’s decision reviewed call Vancouver & Burnaby Appeals Lawyer Andrew Rebane at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107.

COURT OF APPEAL SUCCESS!

Resolutions Law Corporation is proud to report Andrew Rebane’s recent victory at the Court of Appeal in which the Court of Appeal refused to disturb the Trial Judge’s finding of credibility against Plaintiffs who were trying to overturn the Trial Judge’s decision dismissing a claim against Andrew’s client. The trial lasted 27 days at the conclusion of which the Trial Judge dismissed the Plaintiffs’ claim on the basis that the evidence they gave as to threats being made to coerce a share transfer was simply not credible. For the full appeal decision, click on the following link: https://www.bccourts.ca/jdb-txt/ca/19/02/2019BCCA0227.htm

If you are seeking a Burnaby and Vancouver lawyer with experience doing Appeals in the Court of Appeal, call and consult Vancouver & Burnaby Appeals Lawyer at Resolutions Law Corporation, Burnaby, British Columbia andrew@resolutionslawcorp.com or 778-372-7107