How Do I Appeal a Final Supreme Court Decision?

A final decision of the Supreme Court is made by a judge following trial or by the agreement of the parties without a trial. Orders made by the agreement of the parties are called consent orders.

A judge's final decision is appealed to the Court of Appeal. Because consent orders are made with everyone's agreement, they are almost impossible to appeal. Nevertheless, if an appeal can be made, it will be made to the Court of Appeal, just like a judge's final order.

You should think twice before you decide that you want to appeal a decision, as appeals can be surprisingly expensive. They're usually not as expensive as trials are, but the cost is still substantial. As well, it isn't always necessary to appeal a decision. Orders, even final orders, which deal with children, child support and spousal support can often be varied following the decision. Of course to vary an order, there must have been significant change in circumstances since the original decision was made.

The person bringing an appeal is called the appellant. The other party is called the respondent because that party is responding to the appeal. The trial court, the Supreme Court, is called the lower court or the court below, and the judge who heard the trial is called the trial judge.

Appeals to the Court of Appeal are governed by two things, the Court of Appeal Act and the Court of Appeal Rules. You should be familiar with both the act and the Rules because both contain guidelines and deadlines for the conduct of an appeal. Reading the Rules is not enough!

Making your appeal

To appeal a decision, you must file a Notice of Appeal, in Form 7 of the Court of Appeal forms, in the registry of the Court of Appeal and serve it on the other side. The Notice of Appeal is a set form that you must fill out. In it you will have to say:

1. when the order was made,
2. which judge made the order,
3. that you are making an appeal from a trial decision, or a final order of a judge in chambers,
4. whether the appeal is from a decision involving the Divorce Act and/or the Family Law Act,
5. whether the appeal is from a decision involving the care of child and/or support,
6. what order you want the Court of Appeal to make, and
7. how long the trial took.

Once you've filled out your Notice of Appeal, you must file it in the registry of the Court of Appeal. They will charge you a fee for this, and you'll notice that all of the fees charged by the Court of Appeal are higher than those of the Supreme Court. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your action. You must then serve the Notice of Appeal on the other side.

Be aware that you have 30 days from the day after the decision was made to file your Notice of Appeal. The 30 days starts running from the date the decision is made (when the judge ordered you or the other party to do or not do something), not when you receive reasons for that decision. Once the 30 days have run out you will not be able to make your appeal unless you make a special application to the court for an extension of time. In general, the Court of Appeal is very strict and will demand that you obey the deadlines and rules exactly.

Reasons for appealing a decision

When a judge makes a decision following a hearing, the judge does three things. First, the judge makes a decision about the evidence and what the facts of the case are; this is called making a finding of fact. Second, the judge decides what the law applicable to the case is. Third, the judge 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 most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact, called an error of fact. As the appeal court does not hear the evidence all over again, unless the trial 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 trial judge found them to be.

Most often, appeals are based on errors in the judge'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 judge didn't apply the correct legal test or failed to properly apply the correct 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 a judge's decision, you should seriously consider hiring a lawyer.

Deadlines and procedures

Notice of Appeal

You have 30 days from the day after the order was made (not the date the order is formally written up and entered in the court registry, but the date the order is issued by the judge) to file your Notice of Appeal and serve it on the other side. Where there is an urgency to getting the appeal heard, review the Practice Directive on Expediting an Appeal.

Notice of Appearance

After the respondent has been served with your Notice of Appeal, they will have 10 days to file a Notice of Appearance and serve it on you, acknowledging your appeal. At this point, the respondent may choose to serve a Notice of Cross Appeal against you. This is the respondent's own separate appeal from the trial decision.

Preparing the Appeal Book and transcripts

This is where things start to get expensive. Within 60 days of filing your Notice of Appeal, you must obtain a transcript of the testimony in the court appealed from, file the transcript with the court, and serve a copy on the respondent.

The transcript you must obtain is a transcript of all the oral evidence given at trial. You will have to contact a court reporting company (they're in the Yellow Pages) and make arrangements for them to transcribe the tapes that were made of the court proceedings.

Also within 60 days after bringing an appeal, you must prepare an Appeal Record in Form 9 of the Court of Appeal forms, file it with the court, and serve a copy on the respondent.

Within 30 days after filing the Appeal Record, you must prepare an Appeal Book in Form 12, file it with the court, and serve a copy on the respondent. The Appeal Book contains:

1. the pleadings that were filed in the original court proceeding (the Notice of Family Claim, the Response to Family Claim, and the Counterclaim) plus all of the interim orders that may have been made in that proceeding,
2. the documentary exhibits that were entered at the trial, and
3. copies of the order you are appealing from, together with the trial judge's reasons for judgment.

You must prove to the registrar that you have taken whatever steps are necessary to obtain these materials and prepare your Appeal Book. When preparing your Appeal Book, you must pay close attention to the rules and the form provided in the Court of Appeal Rules. There are a couple of companies that will prepare your Appeal Book for you; they are listed in the Yellow Pages.

You will need a total of six copies of each of these documents — the transcript, the Appeal Record, and the Appeal Book — since the court gets four, you'll need one, and the respondent gets one as well.

Since transcripts can often run to several hundred pages, as can Appeal Books, the cost of this step can be quite high.

Settling the Appeal Book and transcripts

After you've got your Appeal Book together and received the transcripts, you must deliver a copy to the respondent for their approval. If the respondent does not approve, you will have to arrange a hearing before the court registrar to settle the content of the Appeal Book or transcript. To apply to settle the content, you must file an Appointment in Form 29 and serve one filed copy on the respondent at least five days before the date of the hearing.

Filing your factum

You have 30 days from the time you filed your Appeal Record to file your factum. A factum, which is to be prepared in Form 10 of the Court of Appeal forms, is your written argument as to why the appeal court should make the order you want.

Factums contain five parts:

1. Statement of facts: A statement of the facts of the appeal, as the trial judge found them to be.
2. Errors in judgment: A statement as to how you think the trial judge erred in law.
3. Argument: Your formal argument, about the law, how the judge applied the law to the facts, and how the judge should have applied the law.
4. Nature of order sought: A statement of the order you'd like the Court of Appeal to make.
5. List of authorities: A list of the case law you rely on in your argument.

Again, factums are extremely formal, and there are all sorts of rules you must follow in preparing your factum, among which are the following:

• there is a limit on how many pages long your factum can be,
• the cover of your factum must be in a buff or beige colour (the respondent's must be green),
• all pages in your factum except for the index have to be printed on the back side of the page (so that when your factum is open, the text appears on the left page and the right page is blank),
• each line of your factum must be numbered, and
• each page must be numbered.

Like I said, factums are extremely formal.

Make a total of six copies of your factum and file them in court. The court will keep four copies, you will keep one, and you must serve the sixth on the respondent.

The respondent's factum

The respondent has 30 days from their receipt of your factum to file and serve you with their own factum. The respondent's factum is their argument against your position, and will also contain any additional arguments the respondent wants to make in support of their cross appeal.

Filing the certificate of readiness

When an appeal is ready for hearing, you must file a certificate of readiness in Form 14 of the Court of Appeal forms. An appeal is ready for hearing:

• when the Appeal Record and your factum and Appeal Book are filed, or
• if an order has been made dispensing with the need for your factum, when your Appeal Book is filed.

Your certificate is a statement that the appeal is ready to be heard and provides a time estimate of how long the hearing will take.

Preparing your book of authorities

The day of your hearing is at hand. At this point, you must prepare a book of authorities. This is a binder containing all of the case law and statutes that you are relying on in the argument you've set out in your factum. You should arrange the cases in the order that you set them out in the list of authorities in your factum. Make five copies. One copy is for you, another is for the respondent, and the court will get the remaining three. You will give the court their copies on the day of the hearing of your appeal.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Mary Mouat QC and Samantha Rapoport, June 29, 2017.

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.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

The highest level of court in the province, having the jurisdiction to review decisions of the Supreme Court, all provincial lower courts, and certain tribunals. See "appeal."

An application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. See "appellant" and "respondent."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

In law, an order of a court cancelling or changing an earlier order of the court. See "order."

The party who brings an appeal of a lower court's decision. See also "appeal" and "respondent."

In law, a person named as an applicant, claimant, respondent, or third party in a court proceeding; someone asserting a claim in a court proceeding or against whom a claim has been brought. See "action" and "litigant."

The person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim."

(1) Intentionally doing a thing, or (2) a law passed by a government, also called "legislation" or a "statute." See "regulations."

A legal document required under the rules of British Columbia's Supreme Court and Court of Appeal which is used to give notice of a party's intention to appeal a decision. See "appeal" and "decision."

(1) A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched, and reviewed, or (2) a courthouse.

A type of hearing in the BC Supreme Court, where a judge or an associate judge hears applications. Unlike trials, evidence is presented through affidavits instead of live witnesses, the proceedings are less formal (no one wears robes), and the result is often an interim order instead of a final order. Chambers can address procedural issues, but also interim orders dealing with parenting or support concerns, or other issues that come up before a family law trial is held.

A court proceeding in which one party sues another for a specific remedy or relief, also called a "lawsuit" or a "case." An action for divorce, for example, is a court proceeding in which the claimant sues the respondent for the relief of a divorce order.

In law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

A judge’s conclusion about the facts in a court proceeding, made after hearing all the evidence. See "decision," "error of fact" and "question of fact."

(1) In law, an unintentional act or failure to act arising from a misunderstanding of the true state of affairs, from ignorance, or from an error not made in bad faith. (2) In contract law, an unintentional misunderstanding as to the nature of a term agreed to in a contract that may justify setting aside all or part of the contract. See "bad faith" and "contract."

A ground of appeal based on a claim that a fact exists or a fact supposed to exist does not, making the judge's decision void or voidable. See "appeal."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

A ground of appeal based on a claim that the trial judge did not apply the law correctly in reaching their decision. This is the most common ground of appeal. See "appeal" and "error of fact."

In law, an attempt to persuade by logical reasoning. Usually refers to oral or written argument presented to a judge or arbitrator following the presentation of evidence, or to a written summary of argument.

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

A central office, located in each judicial district, at which the court files for each court proceeding in that district are maintained, and at which legal documents can be filed, searched and reviewed.

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

A legal document required by the Supreme Court Family Rules to begin a court proceeding, setting out the relief claimed by the claimant and the grounds on which that relief is claimed. See "action," "claim," "claimant," "pleadings" and "relief."

A legal document required by the Supreme Court Family Rules in which the respondent to a court proceeding sets out their reply to the claimant's claim and the grounds for their reply. See "action," claim," "Notice of Family Claim" and "pleadings."

In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

An officer of the court with the power to make certain decisions, including the settlement of a lawyer’s bill, a party's costs of a court proceeding, and settling the form of an order. An officer of the court charged with the responsibility of reviewing and approving certain documents submitted to the court, such as pleadings. See "jurisdiction" and "pleadings."

The law as established and developed by the decisions made in each court proceeding. See "common law."

A binder containg the case law that a party will rely on in making a legal argument. Each case is usually separated by numbered tabs to make it as easy as possible to find a particular case.