Are you thinking of appealing a family law decision? If so, this article discusses what you need to know in Ontario. Since January 2020, the Ontario Court of Appeal has decided on 16 family law cases. A review of these decisions is informative in determining whether or not you want to appeal your decision.
Before beginning, it is important to note that this article is meant solely for informational purposes. This article is not meant to be a substitute for legal advice. I will also point out that I have excluded a few decisions that involve international divorces. These cases are very unique and are not representative of the vast majority of family law cases in Ontario.
How to Appeal a Custody Order in Ontario?
Appealing a custody order is very difficult. Since January, there have only been two decisions from the Ontario Court of Appeal concerning custody. The first one, I previously wrote about, which can be read here. In that case, the father was awarded sole custody, and the mother was ordered to pay the father $250,000 in costs. The mother’s appeal was dismissed and she was ordered to pay a further $35,000 in costs.
The second case, I also wrote about previously, which can be read here. The father appealed every aspect of that decision. The custody decision was concise by the Court of Appeal. The decision of the trial Judge was reviewed, and there were no errors found. The Judge found the mother in that case more credible and awarded her custody.
Though this limited sample is restricted to this year, custody decisions are very informative. When determining custody, a Judge only looks at the best interest of the child. That determination typically requires a decision on the credibility of the parents. The Judge is in the best position to determine credibility, and it would be rare for the Court of Appeal to change that. While you may not be happy with the decision of the trial Judge, be very cautious before spending another $30,000 or more to appeal the decision.
Successfully Appealing a Family Law Decision in Ontario
Since January, there have been three successful appeals of family court decisions in Ontario. The first family law decision was an appeal on the interpretation of a separation agreement. The importance of the decision had an impact on the value of the pension for property equalization. Briefly, the couple was married for two years and then separated. They signed a separation agreement which contemplated reconciliation. The couple reconciled seven years after separation and then divorced eight years after reconciliation. This was a unique situation, and there were clear arguments on appeal.
The second family law decision was an appeal on a very narrow issue of a larger decision. The trial judge ordered that the marital home be sold, but there was an opportunity for one party to buy out the other party. The appeal was simply to allow for the sale of the marital home at fair market value.
The third successful appeal was in relation to a family law decision on the limitation period for beginning an action under the Family Law Act. The husband and wife signed a marriage contract prior to their wedding. The contract expressly waived spousal support by either person. They divorced seven years later and it was five years after that when the husband initiated a request for spousal support. Again, this was a very unique situation and a novel argument.
Lessons Learned From Unsuccessful Family Law Appeal in Ontario
Every other appeal of a family law decision since January 2020 has been unsuccessful. There are a few lessons that can be learned from reading these decisions.
First, don’t let emotions make decisions. Your first reaction when you receive a decision that is not in your favour may be to appeal. This is an emotional decision. You have thirty days to file an appeal, so at least spend a day or two thinking of what is in your best interests.
Second, appeals are expensive and unsuccessful appeals are even more so. A review of the appeal decisions since January demonstrates that an average appeal will cost approximately $25,000. Even if you represent yourself, an unsuccessful appeal will result in you owing your ex-spouse that much in legal fees.
Still Want to Appeal a Family Law Decision? Know This in Ontario
If, after reading this article, you are still considering appealing your family law decision in Ontario, contact Hearty Law. Virtual consultations on any appeal are always free.
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