Family law cases: Which court do I appeal to?

Whenever a judgment is released in a family law case, one or both parties have the right to appeal the decision to a higher court. However, in Ontario, there is more than one appeal option. 

There is both the Divisional Court and the Court of Appeal. To complicate matters, appeals from the Ontario Court of Justice go to the Superior Court of Justice (two other courts). 

Because family court judgments tend to have different components such as custody of children, property division, support orders and other relief that may not be quantified, it is often confusing to the parties in the case (as well as their lawyers) what court should the appeal go to.

How to choose the right court for your appeal

In the case of Bryce v. Bryce [2015] O.J. No. 3149 (Divisional Court), Justice Corbett, writing for Justices Harvison Young and O’Marra, attempted to simplify and explain how to choose the right court for an appeal.

In this case, Ms. Bryce appealed the trial decision of Justice Rogers that dealt with property division, spousal support and child support. Judge Rogers made the following orders:

(1) sale of the matrimonial home

(2) equalization of property after the sale of the matrimonial home

(3) Mr. Bryce to pay child support of $3,204 per month

(4) Mr. Bryce to pay spousal support of $3,700 per month

(5) Mr. Bryce to pay child support arrears of $22,252

Interestingly, even though these spouses could not agree on a settlement of their case, they both agreed that it was the Divisional Court that was the right court to hear the appeal. 

After the parties had filed all of their appeal records and attended court to argue the appeal, it was then - at the start of the appeal - that the court itself raised the jurisdictional issue. This appellate panel considered the trial decision and the orders that were made in determining which court should hear the appeal. They considered section 19 of the Courts of Justice Act that states:

“(1) An appeal lies to the Divisional Court from,

(a) A final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

(1.2) ... clause (1)(a) applies in respect of a final order

(a) for a single payment of not more than $50,000, exclusive of costs

(b) for periodic payments that amount to not more than $50,000, exclusive of costs, in the 12 months commencing on the date the first payment is due under the order...”

This appellate court then explained that this legislation has often been misunderstood in its application. Drawing on past cases cited, they stated:

“It had been thought that the thresholds in s.19(1)(a) of the Courts of Justice Act were cumulative: that is, that if the value of lump sum and annual periodic payments exceeded $50,000, in the aggregate, then the appeal lay to the Court of Appeal...the cap applies to each clause of s.19(1.2). However, it is the entire “final order” and not the individual paragraphs of that order that is to be analyzed.”

In the Bryce case, there were two orders for periodic payments: $3,204 per month for child support and $3,700 per month for spousal support (i.e. annual child support of $38,448 and annual spousal support of $44,400). Adding it all together meant that the total periodic support for the first twelve months was $82,448 - above the threshold in s.19(1.2)(b).

Setting the record straight

When Ms. Bryce argued that she was not appealing the child support order, and therefore was within the monetary jurisdiction of this court (which Mr. Bryce agreed with), the appellate court stated:

“We are a statutory court. Jurisdiction cannot be conferred on us by agreement between the parties. Either this court has jurisdiction over this appeal or it does not. And we have concluded that it does not...Under s.19(1.2)(b), the aggregate of all periodic payments in the judgment must be considered to determine jurisdiction.”

As a result, the appeal was transferred to the Court of Appeal.

Do you understand the divorce system or the Family Law as a whole? Would you know which court to appeal a decision on your divorce or the other issues surrounding it?

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