By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law, and
Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law*

In a previous blog post, “Appealing an Interim Order to the Divisional Court, Part 1: The Test for Leave to Appeal”, Rebecca Winninger discussed the strict test for leave to appeal from an interim order, to help counsel advise their clients about whether or not to seek leave, and any alternatives they should consider before doing so.

This second instalment continues on the subject of seeking leave to appeal from an interim order, focusing on the logistical steps that must be taken once the decision to seek leave has been made.

Applicable Rules and Practice Direction

Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194, apply to proceedings in the Divisional Court.

Rule 62 deals with appeals from interlocutory/interim orders. Within that Rule, r. 62.02 (Motion for Leave to Appeal) provides the framework to seek leave to the Divisional Court from an interim order made in the Superior Court of Justice, as well as final cost orders from the Superior Court of Justice (note: most other leave motions in the Divisional Court are governed by r. 61.03).

However, Rule 62.02 cannot be read in isolation – it incorporates parts of r. 61.03.1 (Motion for Leave to Appeal to Court of Appeal), which in turn draws on parts of r. 61.03 (Motion for Leave to Appeal to Divisional Court).

Rule 37 (Motions) also applies generally to motions in an appellate court, with necessary modifications: r. 61.16.

The Divisional Court has a detailed and helpful Consolidated Practice Direction (effective June 15, 2023), which specifically discusses motions for leave to appeal under r. 62.02 at Part I, Section E. It is important to review the Consolidated Practice Direction in full, including the sections on commencing proceedings and filing materials.

Deadline to Serve the Notice of Motion for Leave to Appeal

The Notice of Motion for leave to appeal must be served within 15 days after the order is made: r. 62.02(3), incorporating r. 61.03.1(3)(a).

Use Form 37A for the Notice of Motion, with any necessary modifications.

It is crucial to meet this deadline, as the Divisional Court will not necessarily grant an extension. As discussed in Part 1 of this blog, the court’s goal is to move the case forward, and the Divisional Court has said that an extension “may not be appropriate where the appeal will cause the parties to devote further time and expense to an appeal of a temporary order, when the issues remain to be determined on a final basis at trial”: MacMillan v. Klug, 2024 ONSC 1125 (CanLII), at para 16.

Location

Motions for leave to appeal under r. 62.02 must be commenced at the Toronto Divisional Court: Consolidated Practice Direction, Part I, para 3a.

Next Steps: Filing, Intake Form, and Email to Include a Schedule

The Notice of Motion must be filed with proof of service within 5 days after service: r. 62.02(3), incorporating r. 61.03.1(3)(b) & Consolidated Practice Direction, Part I, para 2.

The Divisional Court’s Intake Form (found here) must also be completed and filed with the Notice of Motion: Consolidated Practice Direction, Part I, para 2. While the Practice Direction does not expressly require service of the Intake Form, we believe that it is best practice to also serve the Intake Form.

Within two weeks of filing the Notice of Motion, the parties must email the court to advise of any preliminary issues, the proposed hearing length, and provide a draft proposed or agreed schedule for exchanging court documents: Consolidated Practice Direction, Part I, para 26.

The Divisional Court greatly encourages the parties to work out a consent schedule for exchanging court documents. In the event the parties cannot agree, the court may schedule a case management conference to work out the schedule with a judge, or a case management judge may simply give directions, which are orders of the court and which are typically communicated to the parties by email. Any timetable or deadline set through case management supersedes the timelines set out in the Rules of Civil Procedure: see Consolidated Practice Direction, Part I, paras 33-35.

Motion for Stay Pending Appeal

In parenting cases, it is generally necessary to seek a stay of the interim order pending the hearing of the leave motion, to avoid creating a new status quo. You can bring a stay motion either in the Superior Court or the Divisional Court: r. 63.02(1).

A substantive discussion of stay motions is beyond the scope of this blog. But note that you must indicate the intention to seek a stay “at the earliest opportunity, generally when first contacting the court to request a hearing”: Consolidated Practice Direction, Part I, para 37. This means you should mention the stay in the Intake Form and preliminary email which the parties must send to the court (both discussed above). The court may decide to hold a case conference, and the case management judge may grant or decline the stay by case management direction, or may direct that a stay motion be brought: Consolidated Practice Direction, Part I, paras 37-38. The takeaway is that it is possible to obtain a stay without bringing a motion, so you should communicate with the court before preparing motion materials.

Main Motion Materials

After the Intake Form and subject to any other motions (such as a motion to stay), the next step on the main motion for leave to appeal is for the moving party is to prepare the following materials:

  • Motion Record and Transcripts, if Any: For the contents, see r. 62.02(5), incorporating rr. 61.03.1(4) & 61.03(2). The Motion Record must contain the issued and entered order from which leave to appeal is sought: Consolidated Practice Direction, Part I, para 25b. In addition, it must include costs submissions respecting the motion for leave to appeal if costs are sought. The costs submissions should include the proposed quantum of costs (win or lose) and a Costs Outline (Form 57B): Consolidated Practice Direction, Part I, para 25c.
  • Factum: For the contents, see r. 62.02(5), incorporating rr. 61.03.1(4)-(5), & 4.06.1. Ensure that Part IV of the Factum directly addresses and applies the test for leave to appeal. The Factum should not argue the merits of the appeal, nor treat the leave motion as a “re-hearing of the original motion”: Kadolph v. Kadolph, 2015 ONSC 3047 (CanLII) (Div Ct), at para 6 & Fatahi-Ghandehari v. Wilson, 2018 ONSC 5988 (CanLII) (Div Ct), at para 20.
  • Book of Authorities (if any): For the contents, see r. 4.06.1(5). A Book of Authorities is not required if hyperlinks to free public websites are provided in the Factum for all authorities: r. 4.06.1(4) & Consolidated Practice Direction, Part IV, para 9.

The timeline under the Rules of Civil Procedure is that the moving party’s Motion Record, Factum, and Book of Authorities must be served and filed within 30 days after the filing of the Notice of Motion for leave to appeal: r. 62.02(5), incorporating r. 61.03.1(6).

The responding party’s timeline under the Rules of Civil Procedure is that their materials must be filed with proof of service within 25 days after service of the moving party’s Motion Record and other documents: rr. 62.02(5) & 61.03.1(10).

But remember that these timelines may be changed by the parties’ consent or by case management.

Uploading Documents to Case Center

All materials should be uploaded to Case Center as soon as practicable after receiving the Case Center link, and at least four weeks before the hearing date: Consolidated Practice Direction, Part III, paras 2, 5a, & 5m.

The Leave Motion Hearing

The motion will be heard in writing, without the attendance of parties or lawyers, unless the court decides that an oral hearing is required: rr. 62.02(2) & 62.02(5), incorporating r. 61.03.1(15).

Costs

Costs submissions must be included in each party’s Motion Record if costs are being sought: Consolidated Practice Direction, Part I, para 25c.

However, it is quite typical to agree upon an amount for costs. Unless the court has directed an earlier deadline, the parties must upload the agreement they have reached on costs, or their Bills of Costs or Costs Outlines, at least one week before the hearing: Consolidated Practice Direction, Part III, para 5(k.).

The Divisional Court tends to award $5,000 in costs (all inclusive of HST and disbursements) to the successful party on a motion for leave to appeal, but the amount can be lower or higher depending on the circumstances: Bressi v. Skinulis, 2023 ONSC 4917 (CanLII), at para 10 & 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (CanLII), at para 5.

Managing the Case While Awaiting the Decision

A motion for leave to appeal “ought not bring the proceedings below to a halt.” Parties “can and should be able to proceed where doing so would be in compliance with the rules and any existing orders that have not yet been set aside.” If there is no “statutory stay or a formal stay order from the court, an appeal to [the Divisional Court] of an interlocutory order should not halt – or even slow – proceedings in the court below”: Spagnolo v. Spagnolo, 2023 ONSC 5780 (CanLII), at para 22.

Next Steps if Leave is Granted

If leave is granted, serve and file the Notice of Appeal (Form 61A.1) within 7 days after the granting of leave: r. 62.02(5), incorporating r. 63.03.1(16). Review rr. 61.04-61.11 closely, as well as the Consolidated Practice Direction.

*with thanks to Kayleigh Pink for her suggestions and edits. The steps in this blog post were also heavily drawn from Lam Family Law’s Family Law Appeal Checklist (Div Ct).