By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law*
When a client receives an unfavourable decision from a Superior Court judge at the interim stage, they may wish to appeal, but they cannot do so without leave from the Divisional Court: Courts of Justice Act, RSO 1990, c C.43, s 19(1)(b).
Whether to seek leave to appeal an interim order is a difficult decision to make. On the one hand, in family law – and particularly in parenting cases – an interim decision can effectively decide the case. On the other hand, the threshold for leave to appeal an interim order in family law is very high and the test is strict.
The Divisional Court has discouraged appealing interim orders on numerous occasions, and this is an important consideration to explain to your client when seeking instructions. Courts want to move matters forward to trial, and appeals of interlocutory orders run contrary to that goal: see, e.g., Lokhandwala v. Khan, 2019 ONSC 634 (CanLII) (Div Ct), at para 5 & Bergen v. Sharpe, 2011 ONSC 1930 (CanLII) (Div Ct), at paras 42 & 45-46.
The test is found at r. 62.02(4) of the Rules of Civil Procedure, RRO 1990, Reg. 194. Leave will not be granted unless:
- (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or
- (b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. [underlining and bolding added]
The test involves two possible branches upon which leave may be granted: paragraph (a) or paragraph (b). Both branches involve a two-part test, and in each case, both aspects of the two-part test must be met before leave may be granted: Carone v. Peel Condominium Corporation No. 766, 2016 ONSC 7821 (CanLII) (Div Ct), at para 7.
Paragraph (a)
Under the first part of paragraph (a), the moving party must establish that there is a “conflicting decision”. This refers to a difference in the principle chosen as a guide to the exercise of discretion. There may be other cases in which judges, on similar facts, have made different decisions, but that is not enough to satisfy the test. The other decisions must be based upon different legal principles or legal tests: Kadolph v. Kadolph, 2015 ONSC 3047 (CanLII) (Div Ct), at paras 9-10. See also A.H. v. L.W., 2014 ONSC 7486 (CanLII) (Div Ct), at para 20.
Establishing that there is a conflicting court decision is not sufficient unless it is also desirable that leave to appeal be granted. The former does not necessarily lead to the latter: A.H. v. L.W., ibid, at para 18.
Paragraph (b)
Under paragraph (b), for there to be “good reason to doubt the correctness” of the decision, it is not necessary to determine whether the decision was wrong or probably wrong, or whether the court hearing the leave motion would have decided differently. Instead, the test is whether the decision is open to serious debate: Judson v. Mitchele, 2011 ONSC 6004 (CanLII), at para 15.
Under the second prong of paragraph (b), “Matters of sufficient importance are ones that extend beyond the interests of the litigants and relate to matters of public importance and to the development of the law and the administration of justice”: Judson v. Mitchele, ibid, at para 16.
An “issue that rises beyond the interim interests of the particular litigants” is generally required under either paragraph (a) (desirable that leave be granted) or paragraph (b) (matters of sufficient importance)
The Divisional Court does not typically give reasons on a motion for leave to appeal, but in Lokhandwala v. Khan (2019), the court took the opportunity to address “a continuing pattern of unmeritorious motions for leave to appeal temporary support orders”. The motions judge had ordered the father to pay spousal and child support to the mother, without acknowledging that the children spent half their time with the father. The motions judge did not apply a s. 9 offset, or explain why he was not applying an offset: Lokhandwala v. Khan, 2019 ONSC 6346 (CanLII) (Div Ct), at paras 2-3.
The Divisional Court did not grant leave, explaining that in family law, errors in temporary orders “are almost always better addressed at trial rather than by interlocutory appeal”. While there may be reason to doubt the correctness of the order, that does not satisfy the second prong of paragraph (b) – that the proposed appeal is of “such importance” that leave should be granted. Nor does it make it “desirable that leave to appeal be granted” under paragraph (a). Under either branch of the test set out in R. 62.02(04), “the moving party must show an issue that rises beyond the interim interests of the particular litigants: for example, are there questions of broad significance or of general application that warrant resolution by a higher court because they affect the development of the law and the administration of justice”. Even then, “leave will still not usually be granted where that issue will still be available for appellate adjudication after trial”: Lokhandwala v. Khan, ibid, at paras 4-5 [underlining added], citing various cases.
While support amounts can be corrected at trial, with credit given for any overpayment, it may be difficult for a client to hear that they will have to wait to correct an erroneous support amount. In the meantime, the affordability of the payments may be problematic.
Where the interim order involves parenting issues, the Divisional Court may be somewhat more flexible in finding that the matter is one of public importance, given that interim orders “often create a status quo that is difficult to alter at trial”: Mudry v. Danisch, 2014 ONSC 4335 (CanLII) (Div Ct), at paras 155-156.
The Divisional Court has also said that it will rarely grant leave to appeal from case conference, case management, or scheduling decisions, although there are exceptions: Spagnolo v. Spagnolo, 2023 ONSC 5780 (CanLII) (Div Ct), at para 18.
Alternatives to a Leave Motion
Instead of bringing a motion for leave to appeal, you may wish to push the matter towards a final resolution, which is typically a trial. The trial judge has unfettered discretion and can make a substantially different order after a full investigation of the facts.
Or, consider bringing a motion to change the order under r. 25(19) of the Family Law Rules. This rule allows the court that made the order to change it, on a motion, in limited circumstances, including where the order “(b) contains a mistake;” or “(c) needs to be changed to deal with a matter that was before the court but that it did not decide”. A “mistake” in the context of paragraph (b) has generally been interpreted narrowly, to refer only to “a typographical error, a misstatement of what was actually endorsed by the court, or where it does not correctly reflect the common intention of the parties”: Samama v. Gaskovski, 2021 ONSC 7110 (CanLII), at para 20, citing various cases.
For a recent example where the court commented on the interplay between seeking leave to appeal versus bringing a r. 25(19) motion and interpreted a “mistake” in the context of r. 25(19)(b) a bit less narrowly, see Gee v. Gee (2024). In that case, the motion judge ordered the Children’s Aid Society to conduct a s. 30 assessment, but a Children’s Aid Society is not a “person who has technical or professional skill” to prepare a s. 30 report. The Divisional Court denied the motion for leave to appeal from the order, observing that both parties agreed the motion judge had made a mistake, and that this was “the sort of mistake that can and should be corrected on a motion in the Court below under Rule 25(19)(b) of the Family Law Rules”: Gee v. Gee, 2024 ONSC 6343 (CanLII) (Div Ct), at paras 1-2.
*with thanks to Vanessa Lam for her suggestions and edits.