Family Law Appeals

Appeal Work | MacDonald & Partners LLP

Skilled Advocates to Navigate the Process

An appeal is a request, by a party, to review the decision of a lower Court. The process is complex and requires counsel with specialized knowledge, a deep understanding of the law, and the ability to determine if there is merit to proceeding with an appeal. A justice of the Court of Appeal for Ontario recently described the process as contemplating “complex and nuanced legal argument that requires careful excavation of the facts, the evidence…and the law. The exercise would daunt many lawyers…” (see R. v. McCullough, 2017 ONCA 315, para. 35).

MacDonald & Partners LLP has appellate lawyers who have the experience and skills to navigate the complex process, develop a strong appeal or defence to an appeal, provide guidance to clients throughout the process, and provide a considered opinion regarding the merits in pursuing an appeal. Our appeals team led by managing partner Gary S. Joseph, LL.B., LL.M., C.S. have years of experience in this difficult practice area.

Appellate Work

 

Mr. Joseph has appeared on appeals at all levels of Court in Ontario, including the Superior Court of Justice, the Divisional Court, and the Court of Appeal for Ontario, at the Alberta Court of Appeal, and the Supreme Court of Canada. The cases he has worked have become leading authorities in family law.

Contact Gary Joseph

The Appeal Process

 

The commencement of the process is guided by the Family Law Rules or the Rules of Civil Procedure, depending on the Court the underlying decision comes from. Further, the nature of the Order, whether final or temporary and where the Order comes from (i.e. a Family Court, Ontario Court of Justice, Superior Court of Justice), instructs where the appeal should be commenced and the governing considerations for the appeal.


For more information on the commencement of the process click here.

Frequently Asked Questions (FAQs):

  • If we don't need temporary orders and can resolve all issues by agreement, do we need the court at any stage in the matter?

    You don’t need the court except to process a divorce after all other issues arising out of the marriage and separation are settled by agreement. The usual practice is to see the progress to divorce as a two-stage matter with the divorce in the second stage. The first stage is the negotiation of a separation agreement that takes care of all the other issues.

  • If we live together for a short time after we separate to try to repair the marriage, does the year start all over again?

    After spouses separate, they may live together for the purposes of reconciliation for up to ninety days at a single stretch or for several shorter periods totalling ninety days without interrupting the running of the time for divorce. For instance, if the spouses separate on May 1st, get back together for the month of June, and again for a number of days here and there for a total of ninety days or less, but are unsuccessful at reconciling their differences, the running time of the year that started May 1st is not interrupted for divorce purposes.

  • What is property division? What rights or obligations are involved?

    Married spouses (but not unmarried spouses or common law spouses), upon their separation, are entitled to a division of the property acquired by them during cohabitation under the marriage. However, it is not the property, itself, which is divided; it is the value of the property. The process involves an accounting of the value in a procedure that creates a debt owed by one spouse to the other, not a right to a physical partition and transfer of actual property. Subject to certain exclusionary rules, property of every kind acquired during the marriage comes into the accounting -- the value of land and buildings, bank accounts, pensions, accounts receivable, and everything else the value of which can be expressed in dollars. The property acquired during the marriage can be the increases (gains) in value of property that was owned at the time of the wedding, as well as the value of the several items of property purchased after the wedding. The values used in the division process are net of debts and liabilities; that is, the debts and liabilities are deducted from the positive value of the property. To calculate the payment owing by one spouse to the other, an accounting is made of the "net family property for each spouse". Generally speaking, net family property is a spouse's net worth (assets less liabilities) at time of separation less the spouse's net worth at the time of the wedding (except for a matrimonial home that is owned at the time of the wedding). In the ordinary case, the debt created or the payment that is owing is one-half the difference between the greater net family property and the lesser net family property. The spouse with the greater net family property owes this amount to the other spouse. Because this payment balances the values of the property holdings of the spouses, the payment is called an "equalization payment." Where an equalization payment would be "unconscionable" the division of the difference between the net family properties is adjusted to be more or less than one-half. An example of a calculation of an equalization payment is:


    Husband Wife


    Value of property, date of separation $200,000 $350,000

    Value of property, date of marriage 15,000 50,000

    Net family property $185,000 $300,000

    Difference between nfp's $115,000

    ($300,000 - $185,000 = $115,000

    One-half the difference is $57,500

    ($115,000 / 2 = $57,500

    Wife pays this amount to Husband 57,500 (57,500)

    Value of holdings after equalization payment $242,500 $242,500

  • How is the issue of who gets the children decided?

    The best interests of the children is the governing principle for determining all questions relating to their parenting. Many parents are able to put aside their differences on the adult level and by concentrating on the children’s needs, work out the most suitable parenting plan in the circumstances. Sometimes they will need help from a family professional with a background in social work to better understand what their children are going through and to help them manage any emotional conflict that interferes with the discussion staying on track. Your lawyer can make a referral for this purpose. A prime consideration in the planning will be to determine how you and the other parent can continue to be involved with the children and remain a significant part of their lives. In circumstances where the relationship between the parents is too damaged to co-operate on the planning, some variation of sole custody to one parent subject to access by the other parent is usually negotiated or ordered.

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