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With temporary support order appeals stopped, meritorious appeals must wait

4 minute read

Family law is inherently contentious, as people are dividing something once whole: money, possessions and time with their children. Former spouses who cannot agree place their fate in the hands of an adjudicator who may not give them the result they are seeking. More often than not, one or both parties are not happy with the outcome decided in court and consequently, the temptation to appeal an interim order is amplified.

Interlocutory family law orders appealed from the Ontario Superior Court of Justice go to the Divisional Court, which requires parties to move for leave to appeal. According to subrule 62.02(4) of the Rules of Civil Procedure, leave to appeal shall not be granted unless a) it is desirable that leave be granted, or b) the appeal involves an issue that is so important it warrants leave.

The purpose of temporary orders in family law is to put into place a reasonable (and often practical) status quo pending trial. Given the emotional nature of family law, it was often the case that when a party disagreed with a temporary order, he or she would seek leave to appeal it; however, the success rate of these appeals is traditionally low.

Recently, a panel of the Divisional Court released reasons for denying leave to appeal (which is notably unusual for them) and sent a strong message to the family law bar to stop the continuing pattern of applying for leave to appeal temporary support orders as a matter of course.

In Lokhandwala v. Khan 2019 ONSC 6346, the appellant sought leave to appeal a temporary order for spousal and child support. The appellant argued that the motion judge erred by forgoing the application of a s. 9 offset used when the children spend equal time with each parent. Additionally, this omission was not explained in the motion judge’s reasons.

In his reasons for appeal, Justice David Corbett indicated that when appealing a temporary order in family law, the appellant must show that the issue “rises beyond the interim interests of the particular litigants.” He devised a restrictive two-part test:

  1. A temporary family law order will only be granted leave to appeal if it encompasses a question of broad significance or general application that will affect the development of the law and the administration of justice.
  2. If the criterion above is met, leave will not likely be granted if the issue is still available for appellate adjudication after trial.

Justice Corbett denied leave to appeal and concluded that the case at hand was not important to the development of the law. He went on to state that errors in temporary support orders “are almost always better addressed at trial than by way of interlocutory appeal.”

This case serves as a reminder to everyone that appeals are expensive, time-consuming and should not be brought as a matter of course if a client is dissatisfied with the result. However, this doesn’t provide solace to a litigant who is stuck with a temporary support order that is clearly wrong in law or on the facts, but has to wait for a trial, often many years down the road, in order to be corrected.

The harsh reality is that the benefactor of a wrongly decided interim support order could purposely draw out the proceedings as long as possible, while simultaneously exposing the support payor to financial hardship resulting in default or even contempt.

What does this mean for lawyers? The strong message in this case from the Divisional Court panel will inevitably result in having a chilling effect on meritorious appeals. While there may be very good reasons in practice to warrant an appeal, counsel should be mindful of the bench’s message that the issues on appeal must rise above the interim interests of the specific parties and transcend to a broader significance or the administration of justice. In an area such as family law, proving a broader public importance is no simple feat.

As the repercussions of this decision reverberate among the family law bar, perhaps it is time for the Family Law Rules Committee to suggest amendments to the leave to appeal rule as it applies to meritorious temporary family law orders.

This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.

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