A litigant unhappy with a final decision made by a judge of the Provincial Court of British Columbia may choose to appeal to the Supreme Court of British Colombia. An appeal of a Provincial Court family law is made under section 233 of the British Colombia Family Law Act and the British Columbia Supreme Court Family Law Rules.
A person starting an appeal is called the appellant. The person responding to the appeal is called the Respondent. The appellant must commence the appeal within 40 days after a final order is made by the Provincial Court. An Appeal is commenced by filing a Notice of Appeal with the British Columbia Supreme Court. If the appellant fails to file the Notice of Appeal within 40 days, the right of appeal is usually lost. Because of this deadline, it is usually a good idea to file a Notice of Appeal quickly when considering whether to appeal so as to avoid missing the deadline.
Once the Notice of Appeal is filed, it must then be personally served on all the parties to the Provincial Court proceeding. Once served, the Respondent must, if they wish to oppose the appeal, file a Notice of Interest and serve it on the appellant within 7 days.
The Appellant must also order transcripts of the trial and judgement. Transcripts are a typed record prepared by an official court reporter of everything that was said at the Provincial Court hearing. Once the transcripts are ordered, the appellant must prepare and file an Affidavit of Service indicating that the Notice of Appeal was served and the required transcripts were ordered. The Affidavit of Service must be filed within 30 days of filing the Notice of Appeal.
Within 45 days of filing the Notice of Appeal, the appellant must file a copy of the transcripts with the Supreme Court and provide a copy of transcripts to the respondents. The appellant must also, within this 45 day deadline, file a written outline setting out the a) grounds of the appeal b) relief sought and c) the factual and legal basis on which the relief is sought. The appellant must also contact court scheduling and arrange a date of the hearing of the appeal. Once the date is set, a Notice of Hearing of Appeal must be filed and served on the respondents.
The written outline must be served on any party that filed a Notice of Interest at least 21 days prior to the date set for the hearing of the appeal. The respondents then must file and serve a response to the appellant’s outline no later than 14 days prior to the date set for the hearing of the Appeal. The appellant may than file a response to the respondent’s response outline no later than 3 clear days prior to the date set for the appeal.
At Heartland Law, our lawyers of successfully appealed decisions from all levels of courts. Please feel free to contact one of our lawyers if you are considering your own appeal.
Prepared by Nicholas Maviglia