How To Appeal A Provincial Court Order In British Columbia
By Tanya Thakur, Vancouver Family Lawyer
You went to trial in a family law case in the Provincial Court of British Columbia and received a final order. You think the trial judge made a mistake and the order needs to be set aside or changed in some way. What are your options? Can you appeal?
What is a final order? A final order is an order that you receive at the end of a trial or a hearing. You may also arrive at a final consent order if you reach an agreement with your ex-spouse. An interim order is an order you receive before a trial or a hearing, which is meant to provide you with temporary relief until a final order is made. If you received a final order from Provincial Court and you would like to challenge it, you can appeal it to the Supreme Court of BC.
In order to appeal a final order in a family law case you will need to use the Family Law Act (FLA). Under section 233(3) of the FLA, the Court has the power to affirm, set aside, or vary the Provincial Court order. Section 233 of the FLA reads as follows:
(1) A party may appeal to the Supreme Court an order of the Provincial Court made under this Act except an interim order.
(3) After hearing the appeal, the Supreme Court may do one or more of the following:
(a) confirm or set aside the order of the Provincial Court;
(b) make any order that the Provincial Court could have made;
(c) direct the Provincial Court to conduct a new hearing.
You have 40 days from the date of judgement to appeal a final order made by a Judge in the Provincial Court. However, not all final orders from the Provincial Court can be appealed. The Supreme Court of BC will only intervene where the trial judge is found to have erred in law or in principle, misapprehended the evidence, or reached a conclusion that was manifestly wrong (Galpin v. Galpin, 2018 BCSC 1572 at para. 8.).
Appeals are not easy. There must be a clear error that would override the decision.
The term used for this is the standard of review and changes depending on the issue you are appealing. For example, for an error of fact, the standard of review is a “palpable and overriding error”. This means that the error must be “both obvious on the record, and material to the outcome.” (MacCarthy v. MacCarthy, 2015 BCCA 496 at para. 13, citing Housen v. Nikolaisen, 2002 SCC 33). In other words, it is obvious and it was a factor that affected the outcome.
If you’re looking to appeal a final order from Provincial Court in a family law case, you must act quickly. You only have 40 days to do so. The Vancouver family lawyers at Crossroads Law, have appealed cases to the Supreme Court and the Court of Appeal. Contact us now for your free consultation.