How Do I Appeal an Interim Supreme Court Decision?

An interim order is any order that is made before a final order. Interim orders are made in the Supreme Court by a master or judge in chambers. Final orders are made by a judge following trial or with the agreement of the parties. The rules about appealing interim orders are different, depending on whether the order was made by a judge or a master.

Master's orders

Interim orders made by masters in family law matters can be appealed as of right to a judge of the Supreme Court. Because the appeal is being heard at the same level of court, you're not going to have to deal with Court of Appeal Rules and Court of Appeal forms.

Steps

Under Rule 22-7 of the Supreme Court Family Rules, an appeal is brought by filing a Notice of Appeal from Master, Registrar or Special Referee in Form F98 within 14 days of the date the order was made. This deadline applies to orders that the Master made under the Supreme Court Family Rules or the Family Law Act. If the Master made orders under the Divorce Act, you have to look at that legislation and section 21(3), which says that an appeal must be made within 30 days.

The date the appeal will be heard is written on the Form 98 Notice of Appeal from Master, Registrar or Special Referee. It is a good idea to leave this part of the form blank until you've had a chance to talk to the court registry staff. Depending on how long your appeal will take to be heard and the court's schedule, they may want to select the date of the hearing for you.

It's important to know that filing Form F98 does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the master who made the order for an order that the order will be suspended until the appeal is heard.

Judge's orders

To appeal a judge's order, even an interim one (i.e. not a final order), you will need to go to the Court of Appeal. Also note that for judge-made orders, only ones made under the Divorce Act can be appealed as of right. Other orders made by a judge under the Supreme Court Family Rules or the Family Law Act can only be appealed with leave, which means with the permission of the Court of Appeal. Applying for leave to appeal is they call the process of getting the Court of Appeal's permission.

For as of right appeals, which don't require permission, appeals of a judge's order (remember, this means it is a Divorce Act order) must be made within 30 days by filing a Form 1 Notice of Appeal from the Court of Appeal Rules. For appeals of a judge's order made under the Supreme Court Family Rules or the Family Law Act (remember, these other ones require leave), you must file a Notice of Application in Form 4 of the Court of Appeal Rules, indicating it is an application for leave to appeal.

The requirements for the remainder of the appeal process are set out in the Court of Appeal Rules and are fairly complicated, and you should seriously consider hiring a lawyer to help you with your appeal. You might also find the following free online resource helpful, under the chapter about Court of Appeal Rules:

The CanLII Manual to British Columbia Civil Litigation, John Fiddick and Cameron Wardell (eds.), Canadian Legal Information Institute, 2020 CanLIIDocs 630, https://canlii.ca/t/srvn

It's important to know that filing a Notice of Appeal does not, on its own, operate to cancel the order pending the appeal. You can, if you want, apply to the judge who made the order for an order that the order will be suspended until the appeal is heard.

Representing yourself in the BC Court of Appeal

For more information on the appeals process through the Court of Appeal, see the Justice Education Society's Court of Appeal BC Online Help Guide. There are separate guidebooks for appellants and respondents.

Reasons for appealing a decision

When a master or judge makes a decision following a hearing, they do three things. First, the court makes a decision about the evidence and what the facts of the case are; this is called making a finding of fact. Second, the court decides what the law applicable to the case is. Third, the court applies the law to the facts. These last two steps are called findings of law.

You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal.

In many cases, you will not be able to appeal a decision because of a mistake in the court's findings of fact. Because an appeal court does not hear the evidence all over again, unless the master or judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the court found them to be.

Most often, appeals are based on errors in the court's conclusions about the applicable law or how the judge applied the law to the facts, called an error of law. In appeals like these, the argument is based on a claim that the court didn't apply the correct legal test or failed to properly apply the legal test.

Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing an interim decision, you should seriously consider hiring a lawyer.

Because an interim order is only temporary, lasting until the trial, you should seriously consider whether an appeal is necessary, or you should just wait until the trial to have it changed.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Megan Ellis, QC, June 10, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.