How to Appeal a BC Provincial Court Family Decision

If your family law case is dealt with in British Columbia’s Provincial Court, the final decision can be appealed in the B.C. Supreme Court.

Matters concerning guardianship, parenting arrangements (custody/access), child support, spousal support, and protection orders, which are heard in the Provincial Court, are frequently life-changing for those involved.

If there is any chance that the trial judge’s decision was made in error, this should be discussed with your family lawyer and a strategy devised for appealing. Running an appeal without legal guidance is challenging and inadvisable for most people.

Here is what you need to know about the process for appealing a Provincial Court decision in British Columbia.

What is an appeal?

At the end of a B.C. Provincial Court family law case, a judge or justice will make a final decision.

Under Section 233 of the Family Law Act, you have the right to appeal some Provincial Court family decisions to the Supreme Court of B.C.

What can and cannot be appealed?

Only final orders can be appealed. These resolve substantive issues between parties, typically covering the following types of decisions:

• Permanent parenting arrangements and custody decisions.
• Final child/spousal support orders.

The following Provincial Court decisions cannot be appealed to the Supreme Court:

• Interim orders.
• Any other temporary or procedural decisions, such as provisional parenting time or temporary support.

These types of decisions can sometimes be “varied” (changed) at the Provincial Court level and modified if a material change of circumstances is demonstrated. In some instances, it may also be possible to seek a judicial review in the Supreme Court.

What happens during a Supreme Court appeal?

During an appeal, the appellant asks a judge in the Supreme Court of B.C. to review the decision of the Provincial Court judge.

No witnesses are allowed, there will be no jury, and the judge will not “reconsider” evidence presented. New evidence is seldom considered, and only if it meets all the following requirements:

• It could not have been obtained through reasonable diligence at the original hearing.
• It is practically conclusive on a key issue.
• It would likely have affected the outcome.
• It is credible and reliable.

These criteria are strictly applied, making successful “fresh evidence applications” rare.

The appeal judge reviews the existing court records from the case to determine whether the Provincial Court judge made an error in applying the law.

Remember, the Supreme Court’s role is to determine if the Provincial Court judge made an error based on what they knew at the time.

It is also worth noting that appellants cannot lodge appeals simply because they disagree with the judge’s decision. They must file their appeal based on a legal error made at the lower court.

Types of legal errors reviewed by the Supreme Court

Common grounds for appealing to the Supreme Court include:

• Misinterpretation of the Family Law Act.
• Procedural errors affecting fairness.
• Failure to consider relevant evidence.
• Making findings without evidentiary basis.
• Reaching unreasonable conclusions.

How to start the BC Family Court appeal process

Because the B.C. Provincial Court appeal is a “statutory appeal” under the Family Law Act, it follows strict timelines and specific procedures.

A seasoned family law appeal lawyer can guide you through the process. Because the evidence has already been presented in the Provincial Court trial, the bulk of the workload during appeals lies in the paperwork prepared by your lawyer and preparation for the hearing.

The decision of the lower court remains in effect until the Supreme Court judge delivers the verdict on the appeal. If the appeal is successful, a new order may be issued, overturning the previous order from the lower court. However, failed appeals mean that the existing lower court decision stands.

Following is the basic process for filing an appeal with the Supreme Court of B.C, as governed by Supreme Court Family Rule 18-3:

1.    File the Notice of Appeal

• File the appeal within 40 days of the date the Provincial Court order was pronounced (spoken by the judge in court).
• Use Form F80 (Notice of Appeal – Standard Directions), which formally starts the appeal process.
• State the date of the order, the judge who made it, and the specific legal reasons (grounds) why you believe the decision was wrong.
• Pay the filing fee.

2.    Notify the other party (Service)

• Immediately serve a copy of the filed Notice of Appeal to all other parties.
• File an Affidavit of Service at the Supreme Court registry to prove the other party received the documents.

3.    Order transcripts

• Immediately order a complete transcript of the Provincial Court hearing and the judge’s “Reasons for Judgment.”
• Within 30 days of filing your Notice of Appeal, file proof that you ordered transcripts with the Supreme Court registry.
• Pay for the transcripts.

4.    File the transcripts and Statement of Argument

• File the transcripts within 45 days of filing the Notice of Appeal.
• Also, submit a written legal brief outlining the facts, the law, and explaining where the Provincial Court judge made an error. Reference the transcript, cite relevant case law and legislation, and clearly state the preferred outcome.
• Serve the Statement of Argument on all other parties,

5.    Respondent’s response

• If the other party (the respondent) wants to oppose the appeal, they must file a Notice of Interest (Form F77) within 14 days of being served.
• They must also file their own Statement of Argument (Form F82.3) at least 14 days before the hearing.

6.    Obtain a hearing date

• Once the documents are filed, contact the Supreme Court registry to obtain a date for the appeal hearing.
• File a Notice of Hearing of Appeal (Form F81) and serve it on the other party to let them know when to show up.

7.    Attend the appeal hearing

• Appear either in person or via video/teleconference.
• Oral arguments can be presented but not testimony.
• The Supreme Court judge may ask questions to clarify legal points.

The bar for changing a decision from the Provincial Court is set high. A Supreme Court judge will not change the order just because they would have decided differently.

The appellant must show the original judge made a “palpable and overriding error” regarding the facts or an error in how they applied the law.

NOTE: The first level of appeal for a Provincial Court decision in B.C. is to the B.C. Supreme Court. If you wish to appeal the decision from the Supreme Court, discuss with your lawyer an application to the Court of Appeal, which is the highest court in the province.

Why choose DSG Family Law for your family law appeal?

Appeals are complex and can be costly & time-consuming. Successful outcomes can be extremely challenging, as judges are reluctant to overturn decisions from other judges who heard the evidence and witnesses firsthand.

Your chances of success improve greatly if your family lawyer can demonstrate clear legal errors or procedural unfairness.

Darlene Sandhu at DSG Family Law has extensive experience in helping BC families lodge appeals against Provincial Court decisions at the Supreme Court of B.C.

Taking the necessary time and effort to review the facts of your case, she will use this experience to assess whether you have good grounds for an appeal. If so, she will prepare your case after in-depth legal analysis and with a highly persuasive argument.

If you are in the Langley area of British Columbia and need legal assistance with a family law appeal, DSG Family Law offers a free initial consultation to assess your situation and outline your legal options. Speak with a family lawyer today.