On 17 November 2011, the Supreme Court of Canada refused leave to appeal the June 2011 decision of the Court of Appeal for Ontario in Elgner v. Elgner, 2011 ONCA 483. This case has important implications for the practice of family law in British Columbia as it strongly suggests that leave is or ought to be required to appeal interim orders under the Divorce Act.
In Elgner, the appellant elected to bring an appeal of an interim order for spousal support without first seeking leave, which I understand to have been normal practice in Ontario, on the strength of s. 21(1) of the Divorce Act which provides as follows:
“… [A]n appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act.”
In British Columbia, we have always interpreted this section as providing an appeal as of right (see for example, BC Family Practice Manual, §18.12), on the basis that the doctrine of paramountcy allows s. 21(1) of the Divorce Act to trump s. 7(2) of our Court of Appeal Act, which provides:
“... an appeal does not lie to the court from
(a) an interlocutory order, ...
without leave of a justice.”
Ontario's Courts of Justice Act contains an analogous provision at s. 19(1):
“An appeal lies to the Divisional Court from ...
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; ...”
In bringing his appeal of the interim support order, Mr. Elgner took the view that s. 21(1) of the Divorce Act was paramount legislation and he thus could not be required to obtain leave. Despite Mr. Elgner’s vigorous argument, the Court of Appeal insisted on constructing s. 21(1) of the Divorce Act in light of two other provisions of the act, s. 21(6), “Procedure on appeals”:
“Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.”
and s. 25(2), “Rules”:
“ ... the [provincial government] may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules
(a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings; ...
(g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.”
In other words, although a plain reading of s. 21(1) suggests that leave isn't required, the Divorce Act expressly authorizes the provinces to make rules about appeals and provides that Divorce Act appeals should proceed "according to the ordinary procedure governing appeals to the appellate court" as set out in the relevant provincial statutes and regulations, in Ontario being the Courts of Justice Act and in British Columbia the Court of Appeal Act.
Madam Justice Gillese, writing for the court, held as follows:
… by spelling out in s. 21(6) that an appeal under s. 21(1) is to be ‘asserted, heard and decided according to the ordinary procedure governing appeals’, Parliament dictated that the provincial rules are to be followed when exercising the appeal right given by s. 21(1). As has been noted, s. 19(1) of the [Courts of Justice Act] was operative when s. 21(6) of the Divorce Act was enacted. It was the ‘ordinary procedure’ in Ontario for asserting an appeal from an interlocutory order. …
“ In applying the doctrine of paramountcy, a conflict will not be found merely because of overlap in the subject matter of federal and provincial laws. The question is whether it is impossible to comply simultaneously with both laws or whether the operation of the provincial law will frustrate the purpose of the federal law: Canadian Western Bank, at para. 73.
“ As I have explained above, compliance with both s. 21 of the Divorce Act and s. 19(1) of the CJA is possible. A party may comply with both by applying for leave to appeal pursuant to s. 19(1)(b) of the CJA. Furthermore, again for the reasons given above, s. 19(1) does not frustrate the federal purpose behind s. 21 of the Divorce Act. As the two provisions operate harmoniously, the doctrine of paramountcy is not engaged. …
“ In conclusion, when ss. 21(1) and (6) of the Divorce Act are given their ordinary meaning and read in their entire context, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament, it is clear that the right of appeal given by s. 21(1) is to be exercised in accordance with the ordinary procedures governing appeals of that nature. In Ontario, the ordinary procedure requires leave, if the matter to be appealed is an interlocutory order of a judge of the Superior Court of Justice.”
Assuming that the s. 21(6) phrase “ordinary procedure” cannot be interpreted to mean customary practice as opposed to the practice seemingly required by the Court of Appeal Act, it would seem that interim Divorce Act orders are finally in the same boat as Family Relations Act orders as leave is now required to appeal both.
The basic test to seek leave is the same in family law cases as it is for ordinary civil cases, namely that
- the appellant must have a meritorious case,
- the issues proposed to be raised must be important to the parties or to the practice of law generally,
- the appeal must have some practical consequence for the appellant, and
- the appeal cannot unduly delay the progress of the case
(see Watson v. Imperial Financial Services (1992), 65 BCLR (2d) 281 (BCCA) and Thorne v. Thorne, (12 March 1997), Vancouver CA022680), however the court will impose a higher burden on family law appellants to discourage meretricious, money-wasting and time-consuming appeals. As Mr. Justice Esson put it in Newson v. Newson (1998), 39 RFL (4th) 410 (BCCA):
"It is well settled that leave to appeal from interim orders in family matters should be granted only in extraordinary or, as it has sometimes been put, 'extreme' circumstances."
"Extreme" might be a bit extreme, but the point is that leave will be granted sparingly in family law cases as, I think, it should be.