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Divisional or Court of Appeal? No Leave to Appeal needed?

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  • Divisional or Court of Appeal? No Leave to Appeal needed?

    Hello!

    I would appreciate it if anyone can help please.

    I was served with a Notice of Appeal last week for the Court of Appeal.

    The SCJ Family Court trial judgment last month was for:
    a) SS, CS and S7 arrears totalling about $44,000
    b) SS & CS totalling $3000 monthly

    There was no provision for any monthly payment of the arrears so I assume that mean it is to be treated as lump sum payment (RRSPs likely to be transferred)

    The Notice states the Court of Appeal has jurisdiction under Section 6(1)(b) of the Courts of Justice Act.

    1) Shouldn't it be heard in Divisional Court?

    i.e. Courts of Justice Act states:
    "Section 6. (1) An appeal lies to the Court of Appeal from,
    (b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19 (1) (a) or an order from which an appeal lies to the Divisional Court under another Act;"

    Section 19 states:
    "Divisional Court jurisdiction
    19. (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 subsection and (1.2) which states;
    If the notice of appeal is filed on or after October 1, 2007, 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;..."

    My judgment is for both a and b.

    So does the "; " mean "and" or "or" ?

    2) Stbx is asking in his appeal for the order to be varied for everything except what he has imputed at....or wants a new trial ordered:

    i.e. for compensatory support awarded, my imputed income, child and support calculations, the fact that SS and SS and Section 7s were awarded retroactively to 2012 and what the Section 7s consist of, and extended health benefits

    and that leave to appeal is not required.

    How can leave to appeal not be required for this?

    He doesn't quote statutes or cases. He just says the "judge erred" or "the judge failed to properly consider" each point.

    How can this be allowed....that I can just get dragged into court again after 4 years of separation hell, legal fees, conferences and a trial... just because STBX just doesn't like the judgment and wants to dispute things?

    I can't see a lawyer until Friday. Retainer is going to be huge.

    I have no $, that's why I was awarded arrears.

    I self-repped the trial but looking at this appeal process is beyond me, it's so complicated.

    3) Can the Family Counter the courthouse help me at all with this?

    Any assistance would be gratefully appreciated.

    Thank you!
    Last edited by lancelot; 11-03-2015, 08:52 PM. Reason: typo

  • #2
    As far as I know he needs "leave to appeal" which means he has to have permission to start this process. Check with your local courthouse before you spend big bucks on retaining a lawyer.

    Our resident regular poster "Links" just successfully appealed a decision and perhaps he will chime in.

    To calm your nerves read up on "res judicata" - you can't retry something simply because you disagree. Has to be error in law or fresh evidence etc.
    Last edited by arabian; 11-03-2015, 09:42 PM.

    Comment


    • #3
      Thanks Arabian. I will do that, much appreciated.

      I just posted in another thread that I just realized while reading that thread... that my stbx is appealing the Reasons for Judgment...not an Order.

      The Order hasn't been made or signed yet.

      That appeal can't be done then?

      I saw Links won that...congratulations! It's incredible that you successfully fought your way through the appeal maze...well done!!!

      I am good at lots of the legal stuff (I self repped my trial very well) but this appeals thing has me utterly stupefied and confused. Too many places to cross check for this and that.

      Comment


      • #4
        Yeah well my ex would tell anyone who cared to listen that the judge made an error LOL. Only reason I'm not back in court with his this year is because his g/f is not well (Karma). So I feel for you, I really do because I know that I could be in your situation, many of us could.

        Your ex has probably found a lawyer who is blowing smoke up his ass and gladly taking his money doing it.

        My guess (with no experience or anything to back this statement up) is that your ex will fail on his first go-round trying to get this even accepted by the Court of Appeal.

        Please keep us posted as you go along.

        Comment


        • #5
          Thanks, will do.

          Comment


          • #6
            I am self-represented in Court of Appeal for Ontario.
            If you are in Ontario, please see following links:
            Family Law Appeals

            next link is the same info as brochure "How to proceed with civil appeal". It is simple and very helpful
            How to Proceed with a Civil Appeal

            The intake clerks are more friendly but very strict to the format of documents - I brought a factum with space between lines 1.8. The clerk refused to take it because the requirement is 2.0 etc.

            Comment


            • #7
              The thing is you don't really have to do anything.... He is appealing, not you.

              All you need to do is respond to his motion

              In appeal, the presumption is that the order is correct and ANYTHING that can be interpreted as discretion of the judge is not grounds for appeal.

              In fact the ONLY thing that is grounds for appeal is an error of the judge EITHER a legal error or a fact determination error - not only that but the error has to be MANIFEST (clear that you can point it out) and DOMINANT (it actually changes what the judgement should be).

              95% of appeals fail, the appeal judges are pretty much your lawyers, sometimes they will listen to the appellant and not even require the respondent to speak because they don't agree.

              In terms of which court has jurisdiction over the appeal and whether it is "an appeal as a right" or if it requires permission normally I believe it would be an "appeal as a right" if there are elements of that in it.

              I am in Quebec, i think some principles are shared but I can't guarantee.

              Also, though I won this appeal - I appealed a previous decision and even though the judges agreed the judge committed an error in law they still didn't overturn the judgement also even though my ex-wife lied in court about family benefits they refused to fix it because they said i could have theoretically known and her lying is irrelevant.

              Comment


              • #8
                Some info found

                Thanks All

                I found this on the LSUC site, which is a bit helpful to me, and hopefully to others at http://rc.lsuc.on.ca/pdf/ht/civJudgm...ealsRoutes.pdf stating:

                “Reasons for judgment” or “reasons for decision” do not constitute the judgment or order of the court, but are the reasons underlying the judgment
                or order.

                An appeal is taken not from the reasons, but from the order itself. It is the order of the court appealed from that binds the parties, not the reasons given for making it. The reasons may be wrong but the order correct.

                The reasons may be examined in order to determine:
                 what matters were considered;
                 upon what grounds the order was made; and
                 what has been settled or adjudicated on for the purpose of further disposition of the case.

                In order to determine whether res judicata applies to a subsequent proceeding, it is usually necessary to consider not only the formal order of the court in the prior proceeding, but also the pleadings and the reasons for judgment. The formal order (r. 59.03) is invalid if it is inconsistent with the opinion of the court and may be amended to make it conform to the opinion of the court that pronounced it (r. 59.06)."

                Comment


                • #9
                  Here is the answer

                  Hanisch v. McKean: Ontario Court of Appeal Clarifies Jurisdictions of Divisional Court and Court of Appeal Over Monetary Awards of Less than $50,000 | The Conduct of an Appeal

                  as per cases Hanisch v. McKean, 2014 ONCA 698 ( Hanisch v. McKean, 2014 ONCA 698 (CanLII) and Sepe v. Monteleone, 2006 CanLII 1173 (ON CA)

                  Thanks everyone!

                  In case anyone wants to know how much a good appeal lawyer asks for a retainer, the answer for me is $20,000 ...yikes.

                  I can follow law and I self-repped my trial but this appeal business is utterly beyond me, with all of the other things I have going in my life.

                  Comment


                  • #10
                    Originally posted by lancelot View Post
                    Hanisch v. McKean: Ontario Court of Appeal Clarifies Jurisdictions of Divisional Court and Court of Appeal Over Monetary Awards of Less than $50,000 | The Conduct of an Appeal

                    as per cases Hanisch v. McKean, 2014 ONCA 698 ( Hanisch v. McKean, 2014 ONCA 698 (CanLII) and Sepe v. Monteleone, 2006 CanLII 1173 (ON CA)

                    Thanks everyone!

                    In case anyone wants to know how much a good appeal lawyer asks for a retainer, the answer for me is $20,000 ...yikes.

                    I can follow law and I self-repped my trial but this appeal business is utterly beyond me, with all of the other things I have going in my life.
                    Appeal especially defense is simpler than trial - I would say. Appeals are more "technical" and court decisions are random

                    Comment


                    • #11
                      Well...

                      Maybe it's simple for some people but I simply can't take it. I am totally spent mentally and physically.

                      I am having 2 knee replacement surgeries this winter, I have an generalized anxiety order that is in overdrive from all this making me pretty much disfunctional as a person right now, I am caretaking two elderly relatives, 1 who has Alzheimers and 1 who has been on the verge of death for 6 months. I have 2 kids in high school who are really suffering from the stress of all of this divorce with a Dad who shows them (his one sided) court documents and lies constantly to them about me.

                      In the midst of this I am trying to finish retraining for a career in real estate which is high stress but it is my only real career or income option with my assorted health issues.

                      By hiring a good, experienced, compentent lawyer, I hope that I can get to focus on my life instead of my divorce case which has destroyed my health and life for far too long.

                      I am just hoping that my court order for costs comes back with bad faith being found against him because I think that I had documented it in spades. That should help with the appeal and any future court dealings.

                      His last 2 offers, he wasn't even offering child support. Before that child support was offered but only until they finished high school. And he was trying to contract out of paying post secondary...and he makes $85,000 a year.

                      Sorry for the whining but I can't "live" this divorce any longer...I am hiring someone to do that for me, because this is really, really all consuming and killing me.

                      Comment

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